W.P.(C) No.13090 of 2006 :Union of India … Petitioner versus Central Information Commission & Anr. … Respondents :Date of Decision: 11.07.2012

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Right to Information Act, 2005
Date of Decision: 11.07.2012
W.P.(C) No.13090 of 2006
Union of India … Petitioner
versus
Central Information Commission & Anr. … Respondents
Advocates who appeared in this case:
For the Petitioner :Mr.Amarjeet Singh Chandhihok Additional Solicitor
General with Mr. Sumeet Pushkarna Advocate, Mr. Ritesh Kumar and Mr.
Gaurav Verma Advocate
For Respondents : Mr. Prashant Bhushan Advocate with Mr. Ramesh
K.Mishra Advocate for Respondent no.2
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
ANIL KUMAR, J.
1. This writ petition has been filed by the petitioner, Union of India,
seeking the quashing of the order/judgment dated 8th August, 2006 passed
by respondent no.1, Central Information Commission, directing the
production of the document/correspondences, disclosure of which was
sought by respondent no.2, Shri C. Ramesh, under the provisions of the
Right to Information Act, 2005.
2. The brief facts of the case are that the respondent no.2, Shri C.
Ramesh, by way of an application under Section 6 of the Right to
Information Act, 2005 sought the disclosure from the Central Public
Information Officer (hereinafter referred to as 'CPIO') of all the letters sent
by the former President of India, Shri K.R. Narayanan, to the then Prime
Minister, Shri A.B. Vajpayee, between 28th February, 2002 to 15th March,
2002 relating to 'Gujarat riots'.
3. The CPIO by a communication dated 28th November, 2005 denied
the request of respondent no.2 on the following grounds:-
"(1) ……..that Justice Nanavati/Justice Shah commission of enquiry
had also asked for the correspondence between the President, late Shri
K.R.Narayanan and the former Prime minister on Gujarat riots and the
privilege under section 123 & 124 of the Indian Evidence Act, 1872 and
Article 74(2) read with Article 78 and 361 of the Constitution of India has
been claimed by the Government, for production of those documents;
(2) ……that in terms of Section 8(1) (a) of the Right to Information
Act, 2005, the information asked for by you, the disclosure of which would
prejudicially affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State etc."
4. The respondent no.2, thereafter, filed an appeal under Section 19(1) of
the Right to Information Act, 2005 before the Additional Secretary (S & V),
Department of Personnel and Training, who is the designated first appellate
authority under the Act, against the order of the CPIO on the ground that the
Right to Information Act, 2005 has an overriding effect over the Indian
Evidence Act, 1872 and that the document disclosure of which was sought
by him are not protected under Section 8 of the Right to Information Act,
2005 or Articles 74(2), 78 and 361 of the Constitution of India, which appeal
was also dismissed by an order dated 2nd January, 2006. The respondent
no.2 aggrieved by the order of the first appellate authority preferred a second
appeal under Section 19(3) of the Act before the Commission, Respondent
no.1. The Commission after hearing the appeal by an order dated 7th July,
2006 referred the same to the full bench of the Commission, respondent
no.1, for re-hearing.
5. After hearing the appeal, the full bench of the Commission, upholding
the contentions of respondent no.2 passed an order/judgment dated 8th
August, 2006, calling for the correspondences, disclosure of which was
sought by the respondent no.2 under the provisions of the Right to
Information Act, so that it can examine as to whether the disclosure of the
same would serve or harm the public interest, after which, appropriate
direction to the public authority would be issued. This order dated 8th
August, 2006 is under challenge. The direction issued by respondent no.1 is
as under:-
"The Commission, after careful consideration has, therefore, decided
to call for the correspondence in question and it will examine as to whether
its disclosure will serve of harm the public interest. After examining the
documents, the Commission will first consider whether it would be in public
interest to order disclosure or not, and only then it will issue appropriate
directions to the public authority."
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 provisions 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 consultative process between
the then President and the then Prime Minister, enjoys immunity. Further it
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.
7. The petitioner further contended that by virtue of Article 361 of the
Constitution of India the deliberations between the Prime Minister and the
President enjoy complete immunity as the documents are 'classified
documents' and thus it enjoys immunity from disclosure not because of their
contents but because of the class to which they belong and therefore the
disclosure of the same is protected in public interest and also that the
protection of the documents from scrutiny under Article 74(2) of the
Constitution of India is distinct from the protection available under Sections
123 and 124 of the Indian Evidence Act, 1872. Further it was contended that
the documents which are not covered under Article 74(2) of the
Constitution, privilege in respect to those documents could be claimed under
section 123 and 124 of the Evidence Act.
8. The petitioner stated that the freedom of speech and expression as
provided under Article 19(1)(a) of the Constitution of India, which includes
the right to information, is subject to Article 19(2) of the Constitution of
India wherein restrictions can be imposed on the fundamental rights of
freedom of speech and expression. Therefore, it was contended that the right
to information cannot have a overriding effect over and above the provisions
of Article 19(2) of the Constitution of India and since the Right to
Information, Act originates from the Constitution of India the same is
secondary and is subject to the provisions of the Constitution. The petitioner
contended that the observation of respondent no.1 that the Right to
Information Act, 2005 erodes the immunity and the privilege afforded to the
cabinet and the State under Articles 74(2), 78 and 361 of the Constitution of
India is patently erroneous as the Constitution of India is supreme over all
the laws, statutes, regulations and other subordinate legislations both of the
Centre, as well as, of the State. The petitioner has sought the quashing of the
impugned judgment on the ground that the disclosure of the information
which has been sought by respondent no.2 relates to Gujarat Riots and any
disclosure of the same would prejudicially affect the national security,
sovereignty and integrity of India, which information is covered under
Sections 8(1)(a) and 8(1)(i) of the RTI Act. It was also pointed out by the
petitioner that in case of conflict between two competing dimensions of the
public interest, namely, right of citizens to obtain disclosure of information
vis-à-vis right of State to protect the information relating to the
crucial state
of affairs in larger public interest, the later must be given preference.
9. Respondent no.2 has filed a counter affidavit refuting the averments
made by the petitioner. In the affidavit, respondent no.2 relying on section
18(3) & (4) of the Right to Information Act, 2005 has contended that the
Commission, which is the appellate authority under the RTI Act, has
absolute power to call for any document or record from any public authority,
disclosure of which documents, before the Commission cannot be denied on
any ground in any other Act. Further the impugned order is only an interim
order passed by the Commission by way of which the information in respect
of which disclosure was been sought has only been summoned in a sealed
envelope for perusal or inspection by the commission after which the factum
of disclosure of the same to the public would be decided and that the
petitioner by challenging this order is misinterpreting the intent of the
provisions of the Act and is questioning the authority of the Commission
established under the Act. It was also asserted by respondent no.2 that the
Commission in exercise of its jurisdiction in an appeal can decide as to
whether the exemption stipulated in Section 8(1)(a) of the RTI Act is
applicable in a particular case, for which reason the impugned order was
passed by the Commission, and thus by prohibiting the disclosure of
information to the Commission, the petitioner is obstructing the Commission
from fulfilling its statutory duties. Also it is urged that the Right to
Information Act, 2005 incorporates all the restrictions on the basis of which
the disclosure of information by a public authority could be prohibited and
that while taking recourse to section 8 of the Right to Information Act for
denying information one cannot go beyond the parameters set forth by the
said section. The respondent while admitting that the Right to Information
Act cannot override the constitutional provisions, has contended that
Articles 74(2), 78 and 361 of the Constitution do not entitle public
authorities to claim privilege from disclosure. Also it is submitted that the
veil of confidentiality and secrecy in respect of cabinet papers has been
lifted by the first proviso to section 8(1)(i) of the Right to Information Act,
which is only a manifestation of the fundamental right of the people to
know, which in the scheme of Constitution overrides Articles 74(2), 78 and
361 of the Constitution. Respondent no.2 contended that the information,
disclosure of which has been sought, only constitutes the documents on the
basis of which advice was formed/decision was made and the same is open
to judicial scrutiny as under Article 74(2) the Courts are only precluded from
looking into the 'advice' which was tendered to the President. Thus in terms
of Article 74(2) there is no bar on production of all the material on which the
ministerial advice was based. The respondent also contended that in terms of
Articles 78 and 361 of the constitution which provides for participatory
governance, the Government cannot seek any privilege against its citizens
and under the Right to Information Act what cannot be denied to the
Parliament cannot be denied to a citizen. Relying on Section 22 of the Right
to Information Act the respondent has contended that the Right to
Information Act overrides not only the Official Secrets Act but also all other
acts which ipso facto includes Indian Evidence Act, 1872, by virtue of which
no public authority can claim to deny any information on the ground that it
happens to be a 'privileged' document under the Indian Evidence Act, 1872.
The respondent has sought the disclosure of the information as same would
be in larger public interest, as well as, it would ensure the effective
functioning of a secular and democratic country and would also check non
performance of public duty by people holding responsible positions in the
future.
10. This Court has heard the learned counsel for the parties and has
carefully perused the writ petition, counter affidavit, rejoinder affidavit and
the important documents filed therein. The question which needs
determination by this Court, which has been agreed by all the parties, is
whether the Central Information Commission can peruse the
correspondence/letters exchanged between the former President of India and
the then Prime Minster of India for the relevant period from 28th February,
2002 till 1st March, 2002 in relation to 'Gujarat riots' in order to
decide as to
whether the disclosure of the same would be in public interest or not and
whether the bar under Article 74(2) will be applicable to such
correspondence which may have the advice of Council of Minister or Prime
Minister.
11. The Central Information Commission dealt with the following issues
while considering the request of respondent No. 2:
(1) Whether the Public Authority's claim of privilege under the Law of
Evidence is justifiable under the RTI Act 2005?
(2) Whether the CPIO or Public Authority can claim immunity from
disclosure under Article 74(2) of the Constitution?
(3) Whether the denial of information to the appellant can be justified in this
case under section 8(1) (a) or under Section 8(1) (e) of the Right to
Information Act 2005?
(4) Whether there is any infirmity in the order passed by the CPIO or by the
Appellate Authority denying the requested information to the Appellant?
While dealing with the first issue the Central Information Commission
observed that on perusing Section 22 of the Right to Information Act, 2005,
it was clear that it not only over-rides the Official Secrets Act, but also all
other laws and that ipso facto it includes the Indian Evidence Act as well.
Therefore, it was held that no public authority could claim to deny any
information on the ground that it happens to be a "privileged" one under the
Indian Evidence Act. It was also observed that Section 2 of the Right to
Information Act cast an obligation on all public authorities to provide the
information so demanded and that the right thus conferred is only subject to
the other provisions of the Act and to no other law. The CIC also relied on
the following cases:
(1) S.R. Bommai vs. Union of India: AIR 1994 SC 1918, wherein it was
held that Article 74(2) is no bar to the production of all the material on
which the ministerial advice was based.
(2) Rameshwar Prasad and Ors. vs. Union of India and Anr. AIR 2006 SC
980 wherein the above ratio was further clarified.
(3) SP Gupta vs. Union of India, 1981 SCC Supp. 87 case, wherein it was
held that what is protected from disclosure under clause (2) of the Article 74
is only the advice tendered by the Council of Ministers. The reasons that
have weighed with the Council of Ministers in giving the advice would
certainly form part of the advice. But the material on which the reasoning of
the Council of Ministers is based and advice given cannot be said to form
part of the advice. It was also held that disclosure of information must be the
ordinary rule while secrecy must be an exception, justifiable only when it is
demanded by the requirement of public interest.
(4) R.K. Jain vs. Union of India & Ors. AIR 1993 SC 1769 wherein the
SC refused to grant a general immunity so as to cover that no document in
any particular class or one of the categories of Cabinet papers or decisions or
contents thereof should be ordered to be produced.
Based on the decisions of the SC in the above cases, the CIC had also
inferred 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.
12. However, instead of determining whether the correspondence in
question comes under the special class of documents exempted from
disclosure on account of bar under Article 74 (2) of the Constitution of
India, the CIC has called for it in order to examine the same. The petitioners
have contended that the CIC does not have the power to call for documents
that have been expressly excluded under Article 74(2), read with Article 78
and Article 361 of the Indian Constitution, as well as the provisions of the
Right to Information Act, 2005 under which the CIC is established and
which is also the source of all its power. As per the learned counsel for the
petitioner, the exemption from the disclosure is validated by Section 8(1)(a)
and Section 8(1)(i) of the Right to Information Act, 2005 as well. The
respondents, however, have contended that the correspondence is not
expressly barred from disclosure under either the Constitution or the
Provisions of the Right to Information Act, 2005. Therefore, the relevant
question to be determined by this Court is whether or not the correspondence
remains exempted from disclosure under Article 74(2) of the Constitution of
India or under any provision of the Right to information Act, 2005. If the
answer to this query is in the affirmative then undoubtedly what stands
exempted under the Constitution cannot be called for production by the CIC
as well. Article 74 (2) of the Constitution of India is 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.
13. Clearly Article 74(2) bars the disclosure of the advice rendered by the
Council of Ministers to the President. What constitutes this advice is another
query that needs to be determined. As per the learned counsel for the
petitioner, the word "advice" cannot constitute a single instance or opinion
and is instead a collaboration of many discussions and to and fro
correspondences that give result to the ultimate opinion formed on the
matter. Hence the correspondence sought for is an intrinsic part of the
"advice" rendered by the Council of Ministers and the correspondence is not
the material on which contents of correspondence, which is the advise, has
been arrived at and therefore, it is barred from any form of judicial scrutiny.
14. The respondents have on the other hand have relied on the judgments
of S.R. Bommai vs. Union of India: AIR 1994 SC 1918; Rameshwar Prasad
and Ors. vs. Union of India and Anr. AIR 2006 SC 980 and SP Gupta vs.
Union of India, 1981 SCC Supp. 87, with a view to justify that Article 74(2)
only bars disclosure of the final "advice" and not the material on which the
"advice" is based.
15. However, on examining these case laws, it is clear that the factual
scenario which were under consideration in these matters, where wholly
different from the circumstances in the present matter. Even the slightest
difference in the facts could render the ratio of a particular case otiose when
applied to a different matter.
16. A decision is an authority for which it is decided and not what can
logically be deduced therefrom. A little difference in facts or additional facts
may make a lot of difference in the precedent value of a decision. In
Bhavnagar University v. Palitana Sugar Mill (P) Ltd.,(2003) 2 SCC 111, at
page 130, the Supreme Court had held in para 59 relying on various other
decision as under:
"59. A decision, as is well known, is an authority for which it is decided and
not what can logically be deduced therefrom. It is also well settled that a
little difference in facts or additional facts may make a lot of difference in
the precedential value of a decision. [See Ram Rakhi v. Union of India AIR
2002 Del 458 (db), Delhi Admn. (NCT of Delhi) v. Manohar Lal (2002) 7
SCC 222, Haryana Financial Corpn. v. Jagdamba Oil Mills (2002) 3 SCC
496 and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation)
(2002) 257 ITR 123 (Del).]"
17. In Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and
Anr. (AIR 2004 SC 778), the Supreme Court had held that a decision cannot
be relied on without considering the factual situation. In the said judgment
the Supreme Court had observed:-
" Court should not place reliance on decisions without discussing as to how
the factual situation fits in with the fact situation of the decision on which
reliance is placed. Observations of Courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too taken out of their
context. These observations must be read in the context in which they appear
to have been stated. Judgments of Courts are not to be construed as statutes.
To interpret words, phrases and provisions of a statute, it may become
necessary for judges to embark into lengthy discussions but the discussion is
meant to explain and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes; their words are not to
be interpreted as statutes.
18. In the case of S.R. Bommai (supra) Article 74(2) and its scope was
examined while evaluating if the President's functions were within the
constitutional limits of Article 356, in the matter of his satisfaction. The
extent of judicial scrutiny allowed in such an evaluation was also
ascertained. The matter dealt with the validity of the dissolution of the
Legislative Assembly of States of Karnataka, Meghalaya, Nagaland,
Madhya Pradesh, Himachal Pradesh and Rajasthan, by the President under
Article 356, which was challenged.
19. Similarly in Rameshwar Prasad (supra) since no political party was
able to form a Government, President's rule was imposed under Article 356
of the Constitution over the State of Bihar and consequently the Assembly
was kept in suspended animation. Thereafter, the assembly was dissolved on
the ground that attempts are being made to cobble a majority by illegal
means as various political parties/groups are trying to allure elected MLAs
and that if these attempts continue it would amount to tampering of the
constitutional provisions. The issue under consideration was whether the
proclamation dissolving the assembly of Bihar was illegal and
unconstitutional. In this case as well reliance was placed on the judgment of
S.R. Bommai (supra). However it is imperative to note that only the decision
of the President, taken within the realm of Article 356 was judicially
scrutinized by the Supreme Court. Since the decision of the President was
undoubtedly based on the advice of the Council of Ministers, which in turn
was based on certain materials, the evaluation of such material while
determining the justifiability of the President's Proclamation was held to be
valid.
20. Even in the case of S.P Gupta (supra) privilege was claimed against
the disclosure of correspondences exchanged between the Chief Justice of
the Delhi High Court, Chief Justice of India and the Law Minister of the
Union concerning extension of the term of appointment of Addl. Judges of
the Delhi High Court. The Supreme Court had called for disclosure of the
said documents on the ground that the non disclosure of the same would
cause greater injury to public interest than what may be caused by their
disclosure, as the advice was tendered by the Council of Ministers after
consultation with the Chief Justice of Delhi High Court and the Chief Justice
of India and thus it was held that the views expressed by the Chief justices
could not be said to be an advice and therefore there is no bar on its
disclosure.
21. It will be appropriate to consider other precedents also relied on by the
parties at this stage. In State of U.P. vs. Raj Narain, AIR 1975 SC 865 the
document in respect of which exclusion from production was claimed was
the Blue Book containing the rules and instructions for the protection of the
Prime Minister, when he/she is on tour or travelling. The High Court
rejected the claim of privilege under section 123 of the Evidence Act on the
ground that no privilege was claimed in the first instance and that the blue
book is not an unpublished document within the meaning of section 123 of
Indian Evidence Act, as a portion of it had been published, which order had
been challenged. The Supreme Court while remanding the matter back to the
High Court held that if, on the basis of the averments in the affidavits, the
court is satisfied that the Blue Book belongs to a class of documents, like the
minutes of the proceedings of the cabinet, which is per se entitled to
protection, then in such case, no question of inspection of that document by
the court would arise. If, however, the court is not satisfied that the Blue
Book belongs to that class of privileged documents, on the basis of the
averments in the affidavits and the evidence adduced, which are not
sufficient to enable the Court to make up its mind that its disclosure will
injure public interest, then it will be open to the court to inspect the said
documents for deciding the question of whether it relates to affairs of the
state and whether its disclosure will injure public interest.
22. In R.K.Jain vs. Union Of India, AIR 1993 SC 1769 the dispute was
that no Judge was appointed as President in the Customs Central Excise and
Gold (Control) Appellate Tribunal, since 1985 and therefore a complaint
was made. Notice was issued and the ASG reported that the appointment of
the President has been made, however, the order making the appointment
was not placed on record. In the meantime another writ petition was filed
challenging the legality and validity of the appointment of respondent no.3
as president and thus quashing of the said appointment order was sought.
The relevant file on which the decision regarding appointment was made
was produced in a sealed cover by the respondent and objection was raised
regarding the inspection of the same, as privilege of the said documents was
claimed. Thereafter, an application claiming privilege under sections 123,
124 of Indian Evidence Act and Article 74(2) of the Constitution was filed.
The Government in this case had no objection to the Court perusing the file
and the claim of privilege was restricted to disclosure of its contents to the
petitioner. The issue before the Court was whether the Court would interfere
with the appointment of Shri Harish Chander as President following the
existing rules. Considering the circumstances, it was held that it is the duty
of the Minister to file an affidavit stating the grounds or the reasons in
support of the claim of immunity from disclosure in view of public interest.
It was held that the CEGAT is a creature of the statute, yet it intended to
have all the flavors of judicial dispensation by independent members and
President, therefore the Court ultimately decided to set aside the
appointment of Harish Chandra as President.
23. In People's Union For Civil Liberties & Anr. vs. Union of India (UOI)
and Ors. AIR 2004 SC 1442, the appellants had sought the disclosure of
information from the respondents relating to purported safety violations and
defects in various nuclear installations and power plants across the country
including those situated at Trombay and Tarapur. The respondents claimed
privilege under Section 18 (1) of the Atomic Energy Act, 1962 on the
ground that the same are classified as 'Secrets' as it relates to nuclear
installations in the country which includes several sensitive facilities carried
out therein involving activities of classified nature and that
publication of the
same would cause irreparable injury to the interest of the state and would be
prejudicial to the national security. The Court while deciding the controversy
had observed that the functions of nuclear power plants are sensitive in
nature and that the information relating thereto can pose danger not only to
the security of the state but to the public at large if it goes into
wrong hands.
It was further held that a reasonable restriction on the exercise of
the right is
always permissible in the interest of the security of the state and that the
functioning and the operation of a nuclear plant is information that is
sensitive in nature. If a reasonable restriction is imposed in the
interest of the
State by reason of a valid piece of legislation the Court normally would
respect the legislative policy behind the same. It was further held that that
normally the court will not exercise power of judicial review in such matters
unless it is found that formation of belief by the statutory authority suffers
from mala fides, dishonesty or corrupt practices. For a claim of immunity
under Section 123 of the IEA, the final decision with regard to the validity of
the objection is with the Court by virtue of section 162 of IEA. The
balancing between the two competing public interests (i.e. public interest in
withholding the evidence be weighed against public interest in
administration of justice) has to be performed by the Court even where an
objection to the disclosure of the document is taken on the ground that it
belongs to a class of documents which are protected irrespective of their
contents, as there is no absolute immunity for documents belonging to such
class. The Court further held that there is no legal infirmity in the claim of
privilege by the Government under Section 18 of the Atomic Energy Act
and also that perusal of the report by the Court is not required in view of the
object and the purport for which the disclosure of the report of the Board
was withheld.
24. In Dinesh Trivedi vs. Union of India (1997) 4 SCC 306, the petitioner
had sought making public the complete Vohra Committee Report on
criminalization of politics including the supporting material which formed
the basis of the report as the same was essential for the maintenance of
democracy and ensuring that the transparency in government was secured
and preserved. The petitioners sought the disclosure of all the annexures,
memorials and written evidence that were placed before the committee on
the basis of which the report was prepared. The issue before the Court was
whether the supporting material (comprising of reports, notes and letters
furnished by other members) placed before the Vohra Committee can be
disclosed for the benefit of the general public. The Court had observed that
Right to know also has recognized limitations and thus by no means it is
absolute. The Court while perusing the report held that the Vohra Committee
Report presented in the parliament and the report which was placed before
the Court are the same and that there is no ground for doubting the
genuineness of the same. It was held that in these circumstances the
disclosure of the supporting material to the public at large was denied by the
court, as instead of aiding the public it would be detrimentally overriding the
interests of public security and secrecy.
25. In State of Punjab vs. Sodhi Sukhdev Singh, AIR 1961 SC 493, on the
representation of the District and Sessions Judge who was removed from the
services, an order was passed by the Council of Ministers for his reemployment
to any suitable post. Thereafter, the respondent filed a suit for
declaration and during the course of the proceedings he also filed an
application under Order 14, Rule 4 as well as Order 11, Rule 14 of the Civil
Procedure Code for the production of documents mentioned in the list
annexed to the application. Notice for the production of the documents was
issued to the appellant who claimed privilege under section 123 of the IEA
in respect of certain documents. The Trial Court had upheld the claim of
privilege. However, the High Court reversed the order of the Trial Court in
respect of four documents. The issue before the Supreme Court was whether
having regard to the true scope and effect of the provisions of Sections 123
and 162 of the Act, the High Court was in error in refusing to uphold the
claim of privilege raised by the appellant in respect of the documents in
question. The contention of the petitioner was that under Sections 123 and
162 when a privilege is claimed by the State in the matter of production of
State documents, the total question with regard to the said claims falls within
the discretion of the head of the department concerned, and he has to decide
in his discretion whether the document belongs to the privileged class and
whether or not its production would cause injury to public interest. The
Supreme Court had ultimately held that the documents were 'privilege
documents' and that the disclosure of the same cannot be asked by the
appellant through the Court till the department does not give permission for
their production.
26. In S.P. Gupta (supra)the Supreme Court had observed that a seven
Judges' bench had already held that the Court would allow the objection to
disclosure, if it finds that the document relates to affairs of State and its
disclosure would be injurious to public interest, but on the other hand, if it
reaches the conclusion that the document does not relate to affairs of the
State or that the public interest does not compel its non-disclosure or that the
public interest in the administration of justice in the particular
case before it
overrides all other aspects of public interest, it will overrule the objection
and order disclosure of the document. It was further observed that in a
democracy, citizens are to know what their Govt. is doing. No democratic
Govt. can survive without accountability and the basic postulate of
accountability is that the people should have information about the
functioning of the Govt. It is only if the people know how the Govt. is
functioning and that they can fulfill the democratic rights given to them and
make the democracy a really effective and participatory democracy. There
can be little doubt that exposure to public scrutiny is one of the surest means
of running a clean and healthy administration. Therefore, disclosure of
information with regard to the functioning of the Govt. must be the rule and
secrecy can be exceptionally justified only where strict requirement of
public information is assumed. It was further observed that the approach of
the Court must be to alleviate the area of secrecy as much as possible
constantly with the requirement of public interest bearing in mind, at all
times that the disclosure also serves an important aspect of public interest. In
that the said case, the correspondence between the constitutional
functionaries was inspected by the Court and disclosed to the opposite
parties to formulate their contentions.
27. It was further held that under Section 123 when immunity is claimed
from disclosure of certain documents, a preliminary enquiry is to be held in
order to determine the validity of the objections to production which
necessarily involves an enquiry in the question as to whether the evidence
relates to an affairs of State under Section 123 or not. In this enquiry the
court has to determine the character or class of the document. If it comes to
the conclusion that the document does not relate to affairs of State then it
should reject the claim for privilege and direct its production. If it comes to
the conclusion that the document relates to the affairs of the State, it should
leave it to the head of the department to decide whether he should permit its
production or not. 'Class Immunity' under Section 123 contemplated two
kinds of public interest which may clash. There is the public interest that
harm shall not be done to the nation or the public service by disclosure of
certain documents, and there is the public interest that the administration of
justice shall not be frustrated by the withholding of documents; which must
be produced if justice is to be done. It is for the Court to decide
the claim for
immunity against disclosure made under Section 123 by weighing the
competing aspects of public interest and deciding which, in the particular
case before the court, predominates. It would thus seem clear that in the
weighing process, which the court has to perform in order to decide which of
the two aspects of public interest should be given predominance, the
character of the proceeding, the issues arising in it and the likely
effect of the
documents on the determination of the issues must form vital considerations,
for they would affect the relative weight to be given to each of the respective
aspects of public interest when placed in the scales.
28. In these circumstance the Court had called for the disclosure of
documents on the ground that the non disclosure of the same would cause
greater injury to public interest than what may be caused by their disclosure
as the advice was tendered by the Council of Ministers after consultation
with the Chief Justice of High Court and Chief Justice of India and the
views expressed by the Chief Justices could not be said to be an advice and
therefore it was held that there is no bar to its disclosure. Bar of judicial
review is on the factum of advice but not on the reasons i.e. material on
which the advice was founded.
29. These are the cases where for proper adjudication of the issues
involved, the court was called upon to decide as to under what situations the
documents in respect of which privilege has been claimed can be looked into
by the Court.
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.
31. The respondent No.1 has also tried to create an exception to Article
74(2) on the ground that the bar within Article 74(2) will not be applicable
where correspondence involves a sensitive matter of public interest. The CIC
has held as under:-
"…..Prima facie the correspondence involves a sensitive matter of public
interest. The sensitivity of the matter and involvement of larger public
interest has also been admitted by all concerned including the appellant.
…..in deciding whether or not to disclose the contents of a particular
document, a Judge must balance the competing interests and make final
decision depending upon the particular facts involved in each individual
case………therefore we consider it appropriate that before taking a final
decision on this appeal, we should personally examine the documents to
decide whether larger public interest would require disclosure of the
documents in question or not…"
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.
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 Statutes. There can be no doubt about the proposition that the
Constitution is supreme and that all the authorities function under the
Supreme Law of land. For this Golak Nath v. State of Punjab, AIR 1967 SC
1643 can be relied on. In these circumstances, the plea of the respondents
that 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.
33. A bench of this Court in Union of India v. CIC, 165 (2009) DLT 559
had observed 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."
Further it has been observed in para 34 as under:-
" ….Possibly the only class of documents which are granted immunity from
disclosure is those mentioned under Article 74 (2) of the Constitution. These
are documents or information which are granted immunity from disclosure
not because of their contents but because of the class to which they belong."
34. In the circumstances, 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 that this is the intention of the Legislature, such an intension,
without the amendment to the Constitution cannot be sustained.
35. The judgments relied on by the CIC have been discussed
hereinbefore. It is apparent that under Article 74(2) of the Constitution of
India there is no bar to production of all the material on which the advice
rendered by the Council of Ministers or the Prime Minister to the President
is based.
36. The correspondence between the President and the Prime Minister
will be the advice rendered by the President to the Council of Ministers or
the Prime Minister and vice versa and cannot be held that the information in
question is a material on which the advice is based. In any case the
respondent No.2 has sought copies of the letters that may have been sent by
the former President of India to the Prime Minster between the period 28th
February, 2002 to 15th March, 2002 relating to the Gujarat riots. No
exception to Article 74(2) of the Constitution of India can be carved out by
the respondents on the ground that disclosure of the truth to the public about
the stand taken by the Government during the Gujarat carnage is in public
interest. Article 74(2) contemplates a complete bar in respect of the advice
tendered, and no such exception can be inserted on the basis of the alleged
interpretation of the provisions of the Right to Information Act, 2005.
37. The learned counsel for the respondents are unable to satisfy this
Court that the documents sought by the respondent No.2 will only be a
material and not the advice tendered by the President to the Prime Minister
and vice versa. In case the correspondence exchanged between the President
of India and the Prime Minister during the period 28th February, 2002 to
15th March, 2002 incorporates the advice once it is disclosed to the
respondent No.1, the bar which is created under Article 74(2) cannot be
undone.
38. In the case of S.R.Bommai v. Union of India, (1994) 3 SCC 1 at page
242, Para 323 the Supreme Court had held as under:-
" But, Article 74(2) does not and cannot mean that the Government of
India need not justify the action taken by the President in the exercise of his
functions because of the provision contained therein. No such immunity was
intended — or is provided — by the clause. If the act or order of the
President is questioned in a court of law, it is for the Council of Ministers to
justify it by disclosing the material which formed the basis of the
act/order……………………….. The court will not ask whether such
material formed part of the advice tendered to the President or whether that
material was placed before the President. The court will not also ask what
advice was tendered to the President, what deliberations or discussions took
place between the President and his Ministers and how was the ultimate
decision arrived at……………………. The court will only see what was the
material on the basis of which the requisite satisfaction is formed and
whether it is relevant to the action under Article 356(1). The court will not
go into the correctness of the material or its adequacy.
The Supreme Court in para 324 had held as under:-
24. In our respectful opinion, the above obligation cannot be evaded by
seeking refuge under Article 74(2). The argument that the advice tendered to
the President comprises material as well and, therefore, calling upon the
Union of India to disclose the material would amount to compelling the
disclosure of the advice is, if we can say so respectfully, to indulge in
sophistry. The material placed before the President by the Minister/Council
of Ministers does not thereby become part of advice. Advice is what is based
upon the said material. Material is not advice. The material may be placed
before the President to acquaint him — and if need be to satisfy him — that
the advice being tendered to him is the proper one. But it cannot mean that
such material, by dint of being placed before the President in support of the
advice, becomes advice itself. One can understand if the advice is tendered
in writing; in such a case that writing is the advice and is covered by the
protection provided by Article 74(2). But it is difficult to appreciate how
does the supporting material become part of advice. The respondents cannot
say that whatever the President sees — or whatever is placed before the
President becomes prohibited material and cannot be seen or summoned by
the court.
39. The plea of the respondents that the correspondence may not contain
the advice but it will be a material on which the advice is rendered is based
on their own assumption. On such assumption the CIC will not be entitled to
get the correspondences and peruse the same and negate the bar under said
Article of the Constitution of India. As already held the CIC cannot claim
parity with the Judges of Supreme Court and the High Courts. The Judges of
Supreme Court and the High Courts may peruse the material in exercise of
their power under Article 32 and 226 of the Constitution of India, however
the CIC will not have such power.
40. In the case of S.P.Gupta (supra) the Supreme Court had held that what
is protected against disclosure under clause (2) of Article 74 is the advice
tendered by the Council of Ministers and the reason which weighed with the
Council of Ministers in giving the advice would certainly form part of the
advice.
41. In case of Doypack Systems Pvt Ltd v. Union of India, (1988) 2 SCC
299 at para 44 the Supreme Court after examining S.P.Gupta (supra) 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."
42. The learned counsel for the respondents had laid lot of emphasis on
S.P.Gupta (supra) however, the said case was not about what advice was
tendered to the President on the appointment of Judges but the dispute was
whether there was the factum of effective consultation. Consequently the
propositions raised on behalf of the respondents on the basis of the ratio of
S.P.Gupta will not be applicable in the facts and circumstances and the pleas
and contentions of the respondents are to be repelled.
43. The Commission under the Right to Information Act, 2005 has no
such constitutional power which is with the High Court and the Supreme
Court under Article 226 & 32 of the Constitution of India, therefore, the
interim order passed by the CIC for perusal of the record in respect of which
there is bar under Article 74(2) of the Constitution of India is wholly illegal
and unconstitutional. In Doypack Systems (supra) at page 328 the Supreme
Court had held as under:-
"43. The next question for consideration is that by assuming that these
documents are relevant, whether the Union of India is liable to disclose these
documents. Privilege in respect of these documents has been sought for
under Article 74(2) of the Constitution on behalf of the Government by
learned Attorney General.
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. In S.P. Gupta case the
question was not actually what advice was tendered to the President on the
appointment of judges. The question was whether there was the factum of
effective consultation between the relevant constitutional authorities. In our
opinion that is not the problem here. We are conscious that there is no
sacrosanct rule about the immunity from production of documents and the
privilege should not be allowed in respect of each and every document. We
reiterate that the claim of immunity and privilege has to be based on public
interest. Learned Attorney-General relied on the decision of this Court in the
case of State of U.P. v. Raj Narain. The principle or ratio of the same is
applicable here. We may however, reiterate that the real damage with which
we are concerned would be caused by the publication of the actual
documents of the Cabinet for consideration and the minutes recorded in its
discussions and its conclusions. It is well settled that the privilege cannot be
waived. In this connection, learned Attorney General drew our attention to
an unreported decision in Elphistone Spinning and Weaving Mills Co. Ltd.
v. Union of India. This resulted ultimately in Sitaram Mills case.. The
Bombay High Court held that the Task Force Report was withheld
deliberately as it would support the petitioner's case. It is well to remember
that in Sitaram Mills case this Court reversed the judgment of the Bombay
High Court and upheld the take over. Learned Attorney General submitted
that the documents there were not tendered voluntarily. It is well to
remember that it is the duty of this Court to prevent disclosure where Article
74(2) is applicable. We are convinced that the notings of the officials which
lead to the Cabinet note leading to the Cabinet decision formed part of the
advice tendered to the President as the Act was preceded by an ordinance
promulgated by the President.
45. We respectfully follow the observations in S.P. Gupta v. Union of India
at pages 607, 608 and 609. We may refer to the following observations at
page 608 of the report: (SCC pp. 280-81, para 70)
"It is settled law and it was so clearly recognised in Raj Narain case that
there may be classes of documents which public interest requires should not
be disclosed, no matter what the individual documents in those classes may
contain or in other words, the law recognizes that there may be classes of
documents which in the public interest should be immune from disclosure.
There is one such class of documents which for years has been recognised
by the law as entitled in the public interest to be protected against disclosure
and that class consists of documents which it is really necessary for the
proper functioning of the public service to withhold from disclosure. The
documents falling within this class are granted immunity from disclosure not
because of their contents but because of the class to which they belong. This
class includes cabinet minutes, minutes of discussions between heads of
departments, high level inter-departmental communications and dispatches
from ambassadors abroad (vide Conway v. Rimmer) and Reg v. Lewes
Justices, ex parte Home Secretary, papers brought into existence for the
purpose of preparing a submission to cabinet (vide: Lanyon Property Ltd. v.
Commonwealth 129 Commonwealth Law Reports 650) and indeed any
documents which relate to the framing of Government policy at a high level
(vide: Re Grosvenor Hotel, London 1964 (3) All E.R. 354 (CA).
46. Cabinet papers are, therefore, protected from disclosure not by reason of
their contents but because of the class to which they belong. It appears to us
that Cabinet papers also include papers brought into existence for the
purpose of preparing submission to the Cabinet. See Geoffrey Wilson —
Cases and Materials on Constitutional and Administrative Law, 2nd edn.,
pages 462 to 464. At page 463 para 187, it was observed:
"The real damage with which we are concerned would be caused by the
publication of the actual documents of the Cabinet for consideration and the
minutes recording its discussions and its conclusions. Criminal sanctions
should apply to the unauthorized communication of these papers."
44. Even in R.K.Jain (supra) at page 149 the Supreme Court had ruled as
under:-
'34. Equally every member is entitled to insist that whatever his own
contribution was to the making of the decision, whether favorable or
unfavorable, every other member will keep it secret. Maintenance of secrecy
of an individual's contribution to discussion, or vote in the Cabinet
guarantees the most favorable and conducive atmosphere to express views
formally. To reveal the view, or vote, of a member of the Cabinet, expressed
or given in Cabinet, is not only to disappoint an expectation on which that
member was entitled to rely, but also to reduce the security of the continuing
guarantee, and above all, to undermine the principle of collective
responsibility. Joint responsibility supersedes individual responsibility; in
accepting responsibility for joint decision, each member is entitled to an
assurance that he will be held responsible not only for his own, but also as
member of the whole Cabinet which made it; that he will be held responsible
for maintaining secrecy of any different view which the others may have
expressed. The obvious and basic fact is that as part of the machinery of the
government. Cabinet secrecy is an essential part of the structure of the
government. Confidentiality and collective responsibility in that scenario are
twins to effectuate the object of frank and open debate to augment efficiency
of public service or affectivity of collective decision to elongate public
interest. To hamper and impair them without any compelling or at least
strong reasons, would be detrimental to the efficacy of public administration.
It would tantamount to wanton rejection of the fruits of democratic
governance, and abdication of an office of responsibility and dependability.
Maintaining of top secrecy of new taxation policies is a must but leaking
budget proposals a day before presentation of the budget may be an
exceptional occurrence as an instance.
45. Consequently for the foregoing reason there is a complete bar under
Article 74(2) of the Constitution of India as to the advice tendered by the
Ministers to the President and, therefore, the respondent No.1 CIC cannot
look into the advice tendered by the President to the Prime Minster and
consequently by the President to the Prime Minister or council of Ministers.
The learned counsel for the respondents also made an illogical proposition
that the advice tendered by the Council of Ministers and the Prime Minster
to the President is barred under Article 74(2) of the Constitution of India but
the advice tendered by the President to the Prime Minister in continuation of
the advice tendered by the Prime Minster or the Council of Ministers to the
President of India is not barred. The proposition is not legally tenable and
cannot be accepted. The learned counsel for the respondent No.2, Mr.
Mishra also contended that even if there is a bar under Article 74(2) of the
Constitution of India, the respondent No.2 has a right under Article 19(1) (a)
to claim such information. The learned counsel is unable to show any such
precedent of the Supreme Court or any High Court in support of his
contention and, therefore, it cannot be accepted. The freedom of speech and
expression as provided under Article 19(1)(a) of the Constitution of India,
which includes the right to information, is subject to Article 19(2) of the
Constitution of India wherein restrictions can be imposed on the
fundamental rights of freedom of speech and expression. The right to
information cannot have a overriding effect over and above the provisions of
Article 19(2) of the Constitution of India and since the Right to Information,
Act originates from the Constitution of India the same is secondary and is
subject to the provisions of the Constitution.
46. The documents in question are deliberations between the President
and the Prime Minister within the performance of powers of the President of
India or his office. As submitted by the learned counsel for the petitioner
such documents by virtue of Article 361 would enjoy immunity and the
immunity for the same cannot be asked nor can such documents be perused
by the CIC. Thus the CIC has no authority to call for the information in
question which is barred under Article 74(2) of the Constitution of India.
Even on the basis of the interpretation to various provisions of the Right to
Information Act, 2005 the scope and ambit of Article 74(2) cannot be
whittled down or restricted. The plea of the respondents that dissemination
of such information will be in public interest is based on their own
assumption by the respondents. Disclosure of such an advice tendered by the
Prime Minster to the President and the President to the Prime Minister, may
not be in public interest and whether it is in public interest or not,
is not to be
adjudicated as an appellate authority by respondent No.1. The provisions of
the Right to Information Act, 2005 cannot be held to be superior to the
provisions of the Constitution of India and it cannot be incorporated so as to
negate the bar which flows under Article 74(2) of the Constitution of India.
Merely assuming that disclosure of the correspondence between the
President and the Prime Minster and vice versa which contains the advice
may not harm the nation at large, is based on the assumptions of the
respondents and should not be and cannot be accepted in the facts and
circumstances. In the circumstances the findings of the respondent No.1 that
bar under Article 74(2), 78 & 361 of the Constitution of India stands
extinguished by virtue of RTI Act is without any legal basis and cannot be
accepted. The respondent No.1 has no authority to call for the correspondent
in the facts and circumstances.
47. The learned junior counsel for the respondent no.2, Mr. Mishra who
also appeared and argued has made some submissions which are legally and
prima facie not acceptable. His contention that the bar under Article 74(2) of
the Constitution will only be applicable in the case of the High Courts and
Supreme Court while exercising the power of judicial review and not before
the CIC as the CIC does not exercise the power of judicial review is illogical
and cannot be accepted. The plea that bar under Article 74(2) is not
applicable in the present case is also without any basis. The learned counsel
has also contended that the correspondence between the President and the
Prime Minster cannot be termed as advice is based on his own presumptions
and assumptions which have no legal or factual basis. As has been
contended by the learned Additional Solicitor General, the bar under Article
74(2) is applicable to all Courts including the CIC. In the case of
S.R.Bommai v. Union of India, (1994) 3 SCC 1 at page 241 it was observed
as under:-
"321. Clause (2) of Article 74, understood in its proper perspective, is thus
confined to a limited aspect. It protects and preserves the secrecy of the
deliberations between the President and his Council of Ministers."
48. Consequently the bar of Article 74(2) is applicable in the facts and
circumstances and the CIC cannot contend that it has such power under the
Right to Information Act that it will decide whether such bar can be claimed
under Article 74 (2) of the Constitution of India.. In case of UPSC v. Shiv
Shambhu, 2008 IX AD (Delhi) 289 at para 2 a bench of this Court had held
as under:-
" At the outset this Court directs the deletion of the CIC which has been
arrayed as Respondent No.1 to this appeal, consequent upon it being arrayed
as such in the writ petition. This Court has repeatedly issued practice
directions stressing that a judicial or quasi-judicial body or Tribunal whose
order is challenged in a writ petition ought not to itself be impleaded as a
party respondent. The only exception would be if mala fides are alleged
against any individual member of such authority or Tribunal in which case
again it would be such member, and not the authority/Tribunal who may be
impleaded as a respondent."
49. The respondent No.2 has sought copies of the letters that may have
been sent by the President of India to the Prime Minister during the period
28th February, 2002 to 15th March, 2002 relating to Gujarat riots. In the
application submitted by respondent No.2 for obtaining the said information,
respondent No.2 had stated as under:-
"I personally feel that the contents of the letters, stated to have been sent by
the former President of India to the then Prime Minister are of importance
for foreclosure of truth to the public on the stand taken by the Government
during the Gujarat carnage. I am therefore interested to know the contents of
the letters"
50. Considering the pleas and the averments made by the respondents it
cannot be construed in any manner that the correspondence sought by the
respondent No.2 is not the advice rendered, and is just the material on which
the advice is based. What is the basis for such an assumption has not been
explained by the counsel for the respondent No.2. The impugned order by
the respondent No.1 is thus contrary to provision of Article 74(2) and
therefore it cannot be enforced and the petitioner cannot be directed to
produce the letters exchanged between the President and the Prime Minister
or the Council of Ministers as it would be the advice rendered by the
President in respect of which there is a complete bar under Article 74(2).
51. In the case of S.R.Bommai (supra) at page 241 the Supreme Court had
observed as under:-
"321. Clause (2) of Article 74, understood in its proper perspective, is thus
confined to a limited aspect. It protects and preserves the secrecy of the
deliberations between the President and his Council of Ministers."
The Supreme Court at para 324 had also observed as under:-
"…………. One can understand if the advice is tendered in writing; in such
a case that writing is the advice and is covered by the protection provided by
Article 74(2). But it is difficult to appreciate how does the supporting
material become part of advice. The respondents cannot say that whatever
the President sees — or whatever is placed before the President becomes
prohibited material and cannot be seen or summoned by the court.
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."
53. The learned counsel for the respondents also tried to contend that even
if Article 74(2) protects the disclosure of advice from the Council of
Ministers/Prime Minister to President it does not bar disclosure of
communication from President to the Prime Minister. In case of PIO vs.
Manohar Parikar, Writ Petition No. 478 of 2008, the Bombay High Court at
Goa Bench had held that the protection under Article 361 will not be
available for the Governor if any information is sought under RTI Act.
However, the reliance on the said precedent cannot be made, as the same
judgment has been stayed by the Supreme Court in SLP (C) No.33124/2011
and is therefore sub judice and consequently the respondents are not entitled
for any direction to produce the correspondence which contains the advice
rendered by the President to the Prime Minister for the perusal by the CIC.
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 that 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 dated 8th August, 2006 is
liable to be set aside and the CIC cannot direct the petitioner to produce the
correspondence between the President and the Prime Minister, and since the
CIC is not entitled to peruse the correspondence between the President and
the Prime Minister, 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.
54. Consequently, the writ petition is allowed and the order dated 8th
August, 2006 passed by Central Information Commission in Appeal
No.CIC/MA/A/2006/00121 being 'C.Ramesh v. Minister of Personnel &
Grievance & Pension' is set aside. The application of the respondent No.2
under Section 6 of the Right to Information Act, 2005 dated 7th November,
2005 is also dismissed, holding that the respondent No.2 is not entitled for
the correspondence sought by him which was exchanged between the
President and the Prime Minster relating to the Gujarat riots. Considering the
facts and circumstances the parties are, however, left to bear their own cost.
July 11, 2012
Sd/-
ANIL KUMAR, J.

--
- Urvashi Sharma
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