CIC Order on Vajpayee-Narayanan Letters on Gujarat Riots

8/14/2019 CIC Order on Vajpayee-Narayanan Letters on Gujarat Riots

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CENTRAL IN FORMAT ION COMMISSION

(U/S 19 of the Right to Information Act, 2005)

Appeal No. CIC/MA/A/2006/00121

Name of the Appellant: C. Ramesh, No. 20/5, New No. 78, E.S.M. Street,

Arasamarapet, Vellore-632004 Tamil Nadu.

Name of the Public Authority : Ministry of Personnel, Public Grievances and

Pensions.

1. Shri. C. Ramesh (hereinafter referred to as the appellant) submitted

an appeal on 30.1.06 before this Commission seeking a direction from this

Commission to direct the CPIO to disclose the contents of the correspondence

exchanged between the former President Late Shri K.R. Narayanan and the

former Prime Minister Shri A.B. Vajpayee between the period from 28.2.02 and

15.3.02. . The appeal was received on 6.2.06. The comments from the CPIO

were received on 10.5.06. Initially the appeal was heard on 24.5.06 by a Benchconsisting of Shri M.M. Ansari acting as the Principal Information Commissioner

and Shri A. Tiwari acting as the Companion Commissioner. The Bench took into

account the significance of the issues involved and decided to refer it to the Full

Bench. The matter was discussed in the Full Bench on 27 th June 2006 and it was

decided to re-hear the matter. In view of the fact that the appellant is a resident of

Vellore it was decided to arrange the hearing through video conferencing. The

matter was finally heard on 21.7.06. The Appellant himself argued his case

through video conferencing and was also assisted by:

1, Sri Prashant Bhushan, Senior Advocate, and

2. Smt. Aruna Roy, and

3. Prof. Shekhar Singh


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who were authorized by him. The CPIO Ms Harjot Kaur, Deputy Secretary and

Appellate Authority Shri Brahm Dutt, Additional Secretary, Ministry of Personnel,

Public Grievances & pensions were also present along with the Additional

Solicitor General, Mr. Mohan Parasaran and were heard by the Commission. It

may be mentioned that both the appellant and the CPIO have earlier filed written

submissions,

Facts:

2. The appellant submitted an application under the Right to Information

Act (hereinafter referred to as "Act") on 7.11.05, seeking copies of all documents/

correspondence exchanged between the former President Late Shri K.R.

Narayanan and the former Prime Minister Shri. A.B. Vajpayee between the

period from 28.2.02 and 15.3.02. The application was considered by Ms. Harjot

Kaur, Deputy Secretary and CPIO of the Department of Personnel and Training,

Ministry of Personnel, Public Grievances and Pensions (hereinafter referred to as

the CPIO). The disclosure of the information was denied by the CPIO on the

following grounds:

i) That Justice Nanavati/ Justice Shah Commission of Enquiry also

asked for the correspondence between the President, late Shri K.

R. Narayanan and the former Prime Minister on Gujarat riots and

the Government of I ndia claimed privilege under section 123 and

124 of the Indian Evidence Act, 1872 and Article 74(2) read with

Article 78 and Article 361 of the Constitution.

ii) That in terms of Section 8(1)(a) of the Right to Information Act,

2005, the disclosure of the requested information would

prejudicially affect the sovereignty and integrity of India, the

security, strategic, scientific or economic interests of the State.


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3. Aggrieved by the order of the CPIO, the appellant preferred an appeal on

3.12.05 before Sri Brahm Dutt, Additional Secretary (S & V), Department of

Personnel & Training) the designated appellate authority under the Right to

Information Act. In his appeal petition, the appellant contended:

i) That the Right to Information Act has an over-riding effect

over the Indian Evidence Act and as such the requisite information

cannot be denied to him in view of the clear provisions of section 22 of

the said Act.

ii) The information/correspondence between the President and

the Prime Minister cannot be denied under the Right to Information Act as

such information/ correspondence is not covered under the exemptionsprovided for under section 8 of the Act.

iii) The correspondence between the former Prime Minister and

the former President is most important to the people of the country and

they have a right to know as to how their interests were protected by the

Government during the Gujarat riots.

iv) Article 74(2), 78 and 361 nowhere states that the

information/ correspondence between the President and the PrimeMinister should not be disclosed.

v) That the former President himself at one point of time

revealed to the press the brief of what he wrote to the Prime Minister. As

such, it cannot be argued that the disclosure of full content of the

correspondence will in any way prejudicially affect the sovereignty and

integrity of India, the security, strategic, scientific, economic interests of

the State.

vi) The CPIO should have applied Section 10 of the Act and

should have at least provided that part of the information, which can

reasonably be severed from any part that, contains prejudicial information.


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4. The Appellate Authority first called for the comments of the CPIO and then

forwarded the same to the appellant for his comments. The appellant submitted

the parawise remarks, but opted not to present any oral arguments before the

Appellate Authority. The CPIO in her parawise comments claimed that the Right

to Information Act does not have an over-riding effect in so far as the Indian

Evidence Act is concerned. It was also stated that the Government of India has

claimed the privilege under constitutional provisions and that the constitutional

provisions are supreme and cannot be overridden. The CPIO further reiterated

that disclosure of the correspondence exchanged between the President and the

Prime Minister would prejudicially affect the sovereignty and integrity of India in

terms of Section 8(1)(a) of the Act. The appellant in his comments reiterated his

own stand. After considering the submissions, the Appellate Authority rejectedthe first appeal vide his orders dated 2.1.06. The Appellate Authority agreed with

the submissions of the appellant that the Right to Information Act has an

overriding effect over the provisions of Officials Secrets Act, the Indian Evidence

Act and other laws. The Appellate Authority assertively averred that the

relationship between the Right to Information Act and the Constitution of India

would be just the opposite. The correspondence in question would fall within the

purview of Article 74(2), 78 and 361 of the Constitution and would be entitled tobe treated as privileged communication. The Appellate Authority also concluded

that publication of such information or furnishing of such information under the

Right to Information Act would cause damage to the public interest and

accordingly he upheld the order of the CPIO denying the information to the

appellant.

5. In his appeal petition before this Commission, the appellant reiterated

the same submissions earlier made before the appellate authority and contended

that: -

(i) The disclosure of the requested information will help a public

cause, as people in democracy must know what the government is doing.


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(ii) The provisions of Section 123 of the Indian Evidence Act

stand overridden by the Right to Information Act. Citing the observations

of the Honble Supreme Court, in the case of State of UP Vs. Raj Narain &

Ors (AIR 1975 SC 865), the appellant submitted that the claim for

immunity should never be a matter of administrative routine nor be a garb

to avoid inconvenience, embarrassment or adverse to its defence in the

action.

(iii) Article 74(2), 78 and 361 of the Constitution of India don't

provide for an absolute ban on the disclosure of correspondence between

the President and the Prime Minister. In support of his contention, the

appellant has relied upon the observations of the Honble Supreme Court

in R.K. Jain Vs. Union of India. (AIR 1993 SC 1769)(iv) The CPIO and the appellate authority have failed to

appreciate the Constitutional provisions under Article 19(1)(a) that

guarantees the Right of Information as a Fundamental Right. There is no

repugnancy between the provisions of the Constitution and those of the

Right to Information Act. An information required under the Right to

Information Act can only be denied if it is covered under the provisions of

Section 8 of the Right to Information Act and not otherwise.(v) The CPIO and the Appellate Authority have failed to furnish

concrete justification as to how the disclosure of the information would

prejudicially affect the sovereignty and integrity of the nation.

6. The CPIO, on the other hand, in her reply submitted that the Right to

Information Act should not be construed as a carte blanche to furnish all

information of whatever nature to a citizen who seeks disclosure of the said

information by putting forth a claim of public interest. In her detailed reply, the

CPIO further contended that: -

(i) The provisions of the Right to Information Act should be

construed in the light of the provisions of Constitution of India and in terms

of the law declared by the Honble Supreme Court and, as such, certain


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class of documents like the one involved in the present appeal cannot be

disclosed in view of the inherent nature of the class of the communications

which squarely fall within the ambit of classified documents, entitled for

constitutional protection from disclosure.

(ii) Under Section 8(1)(a) of the Act, an information disclosure

that prejudicially affect the sovereignty and integrity of India, the security,

strategic, scientific or economic interest of the State or which would lead

to incitement of an offence cannot be disclosed. Likewise under section

8(1)(i) cabinet papers including records of deliberations between the

Council of Ministers, Secretaries and other officers cannot be disclosed till

a decision is taken. In the instant case, both sections i.e. 8(1)(a) and

8(1)(i) would be applicable. Since, no decision was taken one way or theother in the instant case, the proviso to Section 8)1) (i) would be clearly

inapplicable.

(iii) The CPIO has cited the following observations of the Honble

Supreme Court in Shamsher Singh Vs. State of Punjab:

"President of India is not at all a glorified cipher. Herepresents the majority of the State, is at the Apex,though only symbolically, and has rapport with thepeople and parties, being above politics. His vigilantpresence makes for good government, if only heuses, what Bagehot described as the "Right to beconsulted to warn and encourage". Indeed Article 78wisely used, keeps the President in close touch withthe Prime Minister of matters of national importanceand policy significance and there is no doubt that theimprint of his personality may chasen and correct thepolitical government."

Relying on these observations, she has contended that thecorrespondence exchanged between the President and the Prime

Minister, in this case, is highly sensitive, involving security interests of the

country apart from sovereignty and integrity of the nation, the said

correspondence cannot be disclosed.


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iv) The CPIO has further relied upon the observations of the

Honble Supreme Court in Doy Pack Systems Pvt. Ltd. Vs Union of India

(1988 (2) SCC 299) In Paragraph 46 of the said decision, the Hon'ble

Supreme Court has observed as follows:

Cabinet papers are therefore, protected fromdisclosure, not by reason of their contents, butbecause of the class to which they belong. It appearsto us that the cabinet papers also include papersbrought into existence for the purpose of preparingsubmissions to the Cabinet

v) The CPIO has accordingly submitted that the

correspondence between the Prime Minister and the President are purely

in the nature of rendering a mutual suggestion or advice, which are well

within the realm of Article 74(2) of the Constitution and these are,

therefore, belonging to a separate class.

vi) The CPIO has also cited S.R. Bommai Vs. Union of India

wherein Honble Supreme Court has observed that it will not ask as to

what advice was tendered to the President or as to what statements were

given and how the ultimate decision was arrived at. The court has clearlyruled that:

Clause (2) of Article 74, understood in its properperspective is thus confined to a limited aspect. Itprotects and preserves the secrecy of thedeliberations between the President and his Councilof Ministers."

vii) Even the selective disclosure as sought for by the Appellant

would also only harm, rather than promoting public interest and in any

event, as the document fall under a separate category of classified

document" the same cannot be disclosed.


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viii) The Right to Information Act cannot override the

Constitution. The State can put restrictions under Article 19(2) on the

Freedom of Speech and Expression, which include Right to Information.

ix) In the instant case communication has emanated from the

President to the Prime Minister unlike in cases including in the case of

S.P. Gupta in which case the exchange of correspondence was between

the executive Head of the State, High Court, Central Government and the

Supreme Court.

x) The entire correspondence exchanged between the thenPrime Minister and the then President being fully protected under Article

74(2) is exempted from disclosure under the Right to Information Act and

the Constitution of India.

x) The decision not to disclose the information was taken with

utmost responsibility. This correspondence was exchanged during a

critical time in a state and any disclosure of the same would result in

damage to the public interest.

7. While presenting his case, the appellant Sh. C. Ramesh submitted that

Right to Information is an integral part of Article 21 and Article 19 of the

Constitution of India and that Honble Supreme Court has so held in a number of

cases. He also submitted that Article 74 (2), 78 and 361 which have been relied

upon by the respondents to deny him the information under the Right to

Information Act, cannot over-ride Article 19 and 21 of the Constitution of India.He also submitted that since the Right to Information is an integral part of Article

19 and 21, objection, if any, can only be raised under the provisions of Section 8

of the Right to Information and not elsewhere.


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8. 8. Shri Prashant Bhushan, senior Advocate arguing on behalf of the appellant,

at the very outset, submitted that Preamble to the Right to Information Act which

contains the objectives of the Act is very important as it sets out to establish a

practical regime of Right to Information for citizens to secure access toinformation in order to promote transparency and accountability in the working of

every public authority. The Act has been enacted with a view to fulfill the basic

requirements of a democratic State. The Act aims at operationalising democracy,

which has been held to be a corner stone and a basic feature of our Constitution.

Conceding that Section 22 of the Act, which gives an overriding effect to the

Right to Information definitely does not include and override Constitutional

provisions, he however submitted that the Central Information Commission being

a creature of the Right to Information Act cannot be called upon to invalidate the

Right to Information Act, as a whole, or any of its provisions. In this connection

he cited following observation of the Honble Supreme Court in L. Chandra

Kumars case (1997) 3 SCC 261

The Tribunals shall not entertain any question regarding thevires of their parent statutes following the settled principle that aTribunal which is a creature of an Act cannot declare that very Act

to be unconstitutional. In such cases alone, the concerned HighCourt may be approached directly. All other decisions of theseTribunals, rendered in cases that they are specifically empoweredto adjudicate upon by virtue of their parent statutes, will also besubject to scrutiny before a Division Bench of their respective HighCourts. We may add that the Tribunals will, however, continue toact as the only courts of first instance in respect of the areas of lawfor which they have been constituted. By this, we mean that it willnot be open for litigants to directly approach the High Courts evenin cases where they question the vires of statutory legislations(except, as mentioned, where the legislation which creates the

particular Tribunal is challenged) by overlooking the jurisdiction ofthe concerned Tribunal.

9. He also submitted that even much before the Right to Information was

given a statutory recognition, it has all along been held as an integral part of

Freedom of Speech & Expression guaranteed under Article 19(1)(a) as a


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Fundamental Right. In support of his submission, he cited the following

observations of Honble Supreme Court in Raj Narain vs State of U.P. (1975 (3)

SCR 360)

In a government of responsibility like ours, where all the agentsof the public must be responsible for their conduct, there can butfew secrets. The people of this country have a right to know everypublic act, everything, that is done in a public way, by their publicfunctionaries. They are entitled to know the particulars of everypublic transaction in all its bearing. The right to know, which isderived from the concept of freedom of speech, though notabsolute, is a factor which should make one wary, when secrecyis claimed for transactions which can, at any rate, have norepercussion on public security To cover with veil secrecy thecommon routine business, is not in the interest of the public. Suchsecrecy can seldom be legitimately desired. It is generally desiredfor the purpose of parties and politics or personal self-interest orbureaucratic routine. The responsibility of officials to explain andto justify their acts is the chief safeguard against oppression andcorruption.

10. Quoting extensively from S.C. Guptas Case popularly known as the First

Judges case (1982(2) SCR 365), he submitted that since the Right to

Information is a Fundamental Right, being a part of Article 19(1)(a), a Public

Authority can refuse disclosure of an information only if it is going to harm public

interest. In the same way, while taking recourse to Section 8 of the Right to

Information Act for denying the information, it cannot go beyond the parameters

set forth by Section 8 of the Right to Information Act. In this connection he

particularly referred to the following observations of the Apex Court:

No democratic Government can survive without accountability andthe basic postulate of accountability is that the people should haveinformation about the functioning of government. It is only if peopleknow how government is functioning that they can fulfill the rolewhich democracy assigns to them and make democracy a reallyeffective participatory democracy. "Knowledge" said JamesMadison, "will for ever govern ignorance and a people who mean to


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be their own governors must arm themselves with the powerknowledge gives. A popular government without popularinformation or the means of obtaining it is but a prologue to a farceor tragedy or perhaps both". The citizens' right to know the facts,the true facts, about the administration of the country is thus one of

the pillars of a democratic State. And that is why the demand foropenness in the government is increasingly growing in differentparts of the world.

11. Refuting the stand taken by the respondents, he submitted that the

information requested by the appellant couldnt be withheld or denied under

Article 74(2). Referring to the Honble Apex Courts decision in S.R. Bommais

case (AIR 1994 SC 1918) he submitted that what the appellant has sought is the

copies of the correspondence and not as to what advice was tendered by the

Council of Ministers to the President and the correspondence that has emanated

from President to the Prime Minister cannot be termed as an Advice tendered

by the Council of Ministers so that it could be brought within the ambit of Article

74(2) of the Constitution of India. Reply to the argument about the applicability of

Article 74(2) and 361 of the Constitution of India, the learned Counsel submitted

that even though, the Courts cannot go into the question as to what advice, ifany, was tendered to the President, but people have a right to know as to

whether any such advice was given and, if so, as to what it was. In so far as the

present case is concerned, the appellant is seeking information not about the

advice but only about the correspondence.

12. The learned Counsel also submitted that the information cannot be denied

or withheld at this stage even on the ground of security of State u/s 8(1)(a) as it

has become a matter of past. Replying to a query form Smt. Padma

Balasubramanian, Information Commissioner, Shri Prashant Bhushan submitted

that in the instant case, public interest would be better served by disclosure

rather than by denial. Srimati Aruna Roy representing the appellant, also


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submitted that the disclosure will be a part of larger democratic interests of the

people. Citing the proviso to Sec. 8(1)(i) of the Right to Information Act, Sri

Bhushan submitted that once the cabinet decision has already been taken or

once the matter is complete or over, no information in respect thereto can be

withheld or denied under the provisions of the Right to Information Act and in

such a situation, Article 74(2) does not remain relevant and on that ground alone

the decision of the first Appellate Authority denying the information to the

appellant is rendered unsustainable.

13. Prof Shekhar Singh representing the appellant submitted that the Right to

Information Act starts with an assumption that disclosure of every information is

in public interest unless it is barred under section 8 of the Act. Mr. Prashant

Bhushan also submitted that even if some part of the correspondence is held to

be covered by Sec. 8(1)(a) and, as such, its disclosure is to be denied then also

it will be the duty of the Central Information Commission to sever that part which

is prejudicial to the security and integrity of the country and disclose the

remaining part of the correspondence. He also mentioned in this connection that,in any case, some part of it has already gone in public domain as a result of

disclosure made by none other than the former President of India himself.

14. Submitting his arguments on behalf of Government of India, Department

of Personnel and Training, the learned Addl. Solicitor General submitted that the

Right to Information Act is subject to the content and intent to the Constitutional

provisions and since the present case is concerned with the information that

emanated from the President, it is very well covered within the ambit of Article 74

and 78 to the Constitution of India. In this context, he cited the following

observations from Shamsher Singh Vs. The State (AIR 1974 SC 2192):


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The President in India is not at all a glorified cipher. He representsthe majesty of the State, is at the apex, though only symbolically,and has rapport with the people and parties, being above politics.His vigilant presence makes for good government if only he uses,what Bagehot described as, 'the right to be consulted, to warn and

encourage'. Indeed, Article 78 wisely used, keeps the President inclose touch with the Prime Minister on matters of nationalimportance and policy significance, and there is no doubt that theimprint of his personality may chasten and correct the politicalgovernment, although the actual exercise of the functions entrustedto him by law is in effect and in law carried on by his duly appointedmentors, i.e., the Prime Minister and his colleagues. In short, thePresident, like the King, has not merely been constitutionallyromanticised but actually vested with a pervasive and persuasiverole. Political theorists are quite conversant with the dynamic role ofthe Crown, which keeps away from politics and power and yet

influences both. While he plays such a role, he is not a rival centreof power in any sense and must abide by and act on the advicetendered by his Ministers except in a narrow territory which issometimes slippery.

15. He also submitted that the President of India is not an individual but a

Constitutional functionary and it is in this context that Article 361 of the

Constitution becomes extremely relevant which gives an almost absolute

immunity to the President. Article 74(1) clearly provides that there shall be a

Council of Ministers with the Prime Minister at the head to aid and advise thePresident who shall, in the exercise of his functions, act in accordance with such

advice. In this context Article 74(2), is very important which clearly stipulates that

the President shall not be answerable to any court. Article 74(2) reads as under:

The question whether any, and if so what, advice was tendered byMinisters to the President shall not be inquired into in any court.

16. Pointing out that the correspondence relates to a matter of national

importance involving sensitive information about national security, he submitted

that the plea of the appellant that the President has himself disclosed the content

of the correspondence in the press is not acceptable and the information cannot

be given as the purported statement made by the President before the press if at

all it was made, it was in his individual capacity.


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17. He further pointed out that the Commission should take into account that

the term advice appearing in Article 74(2) covers the entire interaction between

the President and the Prime Minister and the Council of Ministers and whatever

has happened within this inner circle is beyond the reach of any Court under

Article 74(2). In a case like this, the proviso to Sec. 8(1)(i) is clearly inapplicable.

Because what has been asked for is the correspondence between the

President and the Prime Minister and that is about the discussion and

deliberation between the President and the Prime Minister and, as such, these

deliberations cannot be equated with a cabinet decision which has become liable

to be disclosed once it is complete or over, in terms of proviso to Sec. 8(1)(i) of

the Right to Information Act. He also pointed out that many of the decisions that

are taken on behalf and in the name of the President might not even reach the

President. In this context, the Addl. Solicitor General referred to the following

observations in the S.R. Bommai case. (1994(3) SCC 1):

The idea behind Clause (2) is this: the Court is not to enquire - it isnot concerned with - whether any advice was tendered by any

Minister or Council of Ministers to the President, and if so, whatwas that advice. That is a matter between the President and hisCouncil of Ministers. What advice was tendered, whether it wasrequired to be reconsidered, what advice was tendered afterreconsideration, if any, what was the opinion of the President,whether the advice was changed pursuant to further discussion, ifany, and how the ultimate decision was arrived at, are all mattersbetween the President and his Council of Ministers. They arebeyond the ken of the Court. The Court is not to go into it. It isenough that there is an order/act of the President in appropriateform. It will take it as the order/act of the President. It is concernedonly with the validity of the order and legality of the proceeding oraction taken by the President in exercise of his functions and notwith what happened in the inner Councils of the President and hisMinisters. No one can challenge such decision or action on theground that it is not in accordance with the advice tendered by theMinisters or that it is based on no advice.


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18. The fact that the former President has himself revealed some content of

the deliberation also came for discussion during the hearing and it was also

brought to the notice of the Commission that before passing the decision, the

CPIO has gone through the contents of the correspondence. It was also pointed

out that the correspondence may consist of a few letters exchanged between the

then President and the then Prime Minister. In response to a query from

Information Commissioner Shri O.P. Kejariwal, the Addl. Solicitor General

conceded that the President is also a Public Authority as any other Public

Authority.

19. Replying to the arguments of the Addl. Solicitor General, Shri Prashant

Bhushan submitted that Article 361 cannot be interpreted so as to mean that the

President is not even answerable to the people. Definitely, the President is not

beyond public scrutiny even though, he may not be answerable to the Courts.

The appellant also stated in reply that the Presidential privilege cannot override

his rights guaranteed under Article 19(1)(a), since Right to Information is a

mechanism to avail those rights which cannot be denied. He also stated that inparticipatory governance, Government cannot seek any privilege against its

citizens and under the provisions of the Right to Information what cannot be

denied to the Parliament, cannot be denied to a citizen.

Issues:

20. In view of the facts of the case and submissions made before this

Commission, following issues need to be determined:

1. Whether the Public Authoritys claim of privilege under the Law of

Evidence is justifiable under the RTI Act, 2005?


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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?

Decision and Reasons:

21. The first question that needs to be determined in this case is as to whetherthe provisions of the Indian Evidence Act stands over-ridden by the Right to

Information Act, 2005? In this connection it is pertinent to refer to provisions of

Section 22 of the Act, which reads as under:

The provisions of this Act shall have effect notwithstanding

anything inconsistent therewith contained in the Official Secrets

Act, 1923, and any other law for the time being in force or in anyinstrument having effect by virtue of any law other than this Act.

22. A plain reading of Section 22 makes it clear that it not only over-rides the

Official Secrets Act, but also all other laws and that ipso facto include the Indian

Evidence Act. In view of this no public authority can claim to deny any

information on the ground that it happens to be a privileged one under the

Indian Evidence Act. Section 3 of the Right to Information Act confers a right on

all citizens to obtain information and it casts an obligation on all public authorities

to provide the information so demanded. The right thus conferred is only subject

to the other provisions of the Act and to no other law.


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23. The second question that needs to be determined is as to whether the

Government or for that matter a public authority can deny or refuse to give an

information to a citizen on the ground that the information so demanded is

covered by Article 74 (2), 78 or Article 361 of the Constitution of India and as

such it cannot be furnished. In this case the CPIO and the Appellate Authority

have argued that the Right to Information Act does not and cannot override the

Constitutional provisions. On the other hand the Appellant has submitted that

there is no repugnancy between the Right to Information conferred by the Act

and the constitutional provisions taken recourse to by the CPIO and by the

Appellate Authority for denying the requested information. The Appellant has

submitted that none of these Articles anywhere state that the

information/correspondence between the President and the Prime Ministershould not be disclosed. As observed by the Honble Apex Court in Bommais

case, Article 361 is the manifestation of the theory prevalent in English law that

'King can do no wrong' and, for that reason, his actions are beyond the process

of the court. Any and every action taken by the President is really the action of

his ministers and subordinates. It is they, who have to answer for, defend and

justify any and every action taken by them in the name of the President, if such

action is questioned in a Court of law. The President cannot be called upon toanswer for or justify the action. It is for the Council of Ministers to do so. Where

the President acts through his subordinates, it is for the subordinate to defend

the action.

24. Before deciding the issue of applicability of Article 74(2) to the instant

case, it is pertinent to refer again to the provisions of Article 74(2), which clearly

stipulates that the court shall not inquire into whether any advice was at all

tendered and even if there was any such advice, the court shall not inquire as to

what advice was tendered. In this connection the following observations of

Justice Sawant and Justice Kuldip Singh in S. R. Bommai vs. Union of India (AIR

1994 SC 1918) regarding the scope and ambit of Article 74(2) are quite relevant:


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The object of Article 74(2) was not to exclude any material ordocuments from the scrutiny of the Courts but to provide that anorder issued by or in the name of the President could not bequestioned on the ground that it was either contrary to the advicetendered by the Ministers or was issued without obtaining any

advice from the Ministers. Its object was only to make the questionwhether the President had followed the advice of the Ministers oracted contrary thereto, non-justiciable.

Justice Ahmadi also agreed that Article 74(2) is no bar to the production of

all the material on which the ministerial advice was based. This issue has been

further clarified in a recent case by the Honble Supreme Court (Rameshwar

Prasad and Ors.vs. Union of India and Anr.AIR2006SC980):

A plain reading of Article 74(2) stating that the question whether any,and if so what, advice was tendered by Ministers to the President shallnot be inquired into in any Court, may seem to convey that the Court isdebarred from inquiring into such advice but Bommai has held thatArticle74 (2) is not a bar against scrutiny of the material.

25. In S.P Guptas case the question arose as to whether the views expressed

by the Chief Justice of the High Court and the Chief Justice of India on

consultation form part of the advice. In this case the two Chief Justices were

consulted on "full and identical facts" and their views were obtained and it is afterconsidering those views that the Council of Ministers tendered its advice to the

President. The views expressed by the two Chief Justices preceded the

formation of the advice. The Honble Supreme Court clearly held that merely

because their views are referred to in the advice that is ultimately tendered by the

Council of Ministers, they do not necessarily become part of the advice. The

Court further ruled that what is protected against disclosure under clause (2) of

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. The Honble Apex Court illustrating the point with the example of a

judgment clearly laid down the law as follows:


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The judgment would undoubtedly be based on the evidence ledbefore the Court and it would refer to such evidence and discuss itbut on that account can it be said that the evidence forms part ofthe judgment? The judgment would consist only of the decision andthe 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 bythe Council of Ministers is based cannot be said to be part of theadvice and the correspondence exchanged between the LawMinister, the Chief Justice of Delhi and the Chief Justice of Indiawhich constituted the material forming the basis of the decision ofthe Central Government must accordingly be held to be outside theexclusionary rule enacted in clause (2) of Article 74.

26. The appellant has in this connection referred to the decision of the Honble

Supreme Court in R. K. Jain vs. Union of India & Ors. (AIR 1993 SC 1769)

wherein the Apex Court has held the claim of the State Minister and the State

Secretary for immunity of state documents from disclosure as unsustainable. But

in this case , the Honble Court did not find it necessary to disclose the contents

to the petitioner or to his counsel. It may be mentioned that in this case the

immunity was claimed by the State under the Evidence Act as well as under the

constitutional provisions and the Honble Court refused to grant a general

immunity so as to cover that no document in any particular class or one of thecategories of Cabinet papers or decisions or contents thereof should be ordered

to be produced.

27. It would not be out of context to refer to the decision of the Apex Court in

State of Punjab vs. Sukhdev Singh AIR 1961 SC 493, wherein the Honble Court

held that the documents which embody the minutes of the meetings of the

Council of Ministers and indicate the advice given by the Council cannot be

produced in a court of law unless their production is permitted by the head of the

department. It was not for the court to go into the question as to whether the

public interest will be really injured or not by its disclosure. But in State of U.P.

vs. Raj Narain (AIR 1975 SC 884) the following observations of Honble Justice

Mathew are worth quoting:


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In a government of responsibility like ours, where all the agents ofthe public must be responsible for their conduct, there can be butfew secrets. The people of this country have a right to know everypublic act, everything that is done in a public way, by their publicfunctionaries. They are entitled to know the particulars of every

public transaction in all its bearing. The right to know, which isderived from the concept of freedom of speech, through notabsolute, is a factor which should make one wary, when secrecy isclaimed for transactions which can, at any rate, have norepercussion on public security. To cover with veil of secrecy, thecommon routine business is not in the interest of the public. Suchsecrecy can seldom be legitimately desired.

28. The case of S.P. Gupta v. Union of India, 1981 SCC Supp. 87, decided by

a seven-Judge Constitution Bench is generally considered as having broken new

ground and having added a fresh, liberal dimension to the need for increaseddisclosure in matters relating to public affairs. In that case, the consensus that

emerged amongst the Judges was that in regard to the functioning of

government, 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.

29. In Dinesh Trivedi vs. Union of India (1997) 4 SCC 306 the Court reiteratedthe limitations of the Right to Information Act. In this context, the following

observations of the Supreme Court are noteworthy.

In modern constitutional democracies, it is axiomatic that citizenshave a right to know about the affairs of the Government which,having been elected by them seeks to formulate sound policies ofgovernance aimed at their welfare. However, like all other rights,even this right has recognized limitations; it is, by no means,absolute.

30. In Doypack Systems Pvt. Ltd. etc. vs. Union of India (AIR 1988 SC 782),

the production of the documents was resisted by the Attorney-General on behalf

of the Union of India on the ground that the documents were not relevant and in

any event most of them were privileged being part of the documents leading to


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Provided that the decisions of Council of Ministers, the reasons

thereof, and the material on the basis of which the decisions were

taken shall be made public after the decision has been taken, and the

matter is complete, or over:

Provided further that those matters, which come under the

exemptions specified in this section, shall not be disclosed.

32. From the above, it appears that the Cabinet papers including records of

deliberations of the Council of Ministers, Secretaries and other officers shall be

made public, once a decision has been taken or the matter is complete. As such,

the veil of confidentiality and secrecy in respect of Cabinet papers has been liftedby the first proviso to section 8(1)(i) of the Right to Information Act, 2005. Thus

Cabinet papers including records of deliberations of the Council of Ministers, etc.

can be withheld or disclosure whereof can be denied only if:

i) the matter is still pending or :

ii) the information comes within one of the specified exemptions

under section 8(1).

33. In view of the above observations, the CPIO cannot deny information

sought under the Right to Information Act by taking recourse to either the Law of

Evidence or Article 74(2), of the Constitution of India. In this connection, it would

be pertinent to refer to a latest decision of the Apex Court in Rameshwar Prasad

and Ors.vs. Union of India (UOI) and Anr.(AIR2006SC980) wherein it has been

clearly mentioned that every material that the President sees or is placed before

him does not become a part of the advice. The following observations in the

said case are worth quoting:

But it is difficult to appreciate how does the supporting material,becomes part of advice. The respondents cannot .say thatwhatever the President sees -- or whatever is placed before thePresident becomes prohibited material and cannot be seen orsummoned by the Court.


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34. This, however, does not mean that the disclosure can be claimed as a

matter of right in respect of all types/categories of information/ correspondence.

Even in S. P. Guptas case, the Honble Supreme Court held that the disclosure

of documents relating to affairs of State involves two competing dimensions of

public interest, namely, the right of the citizen to obtain disclosure of information,

which competes with the right of the State to protect the information relating to its

crucial affairs. It was further held that, 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. It is important to note that it was conceded that there are certain

classes of documents which are necessarily required to be protected, e.g.

Cabinet Minutes, documents concerning the national safety, documents whichaffect diplomatic relations or relate to some State secrets of the highest

importance, and the like in respect of which the Court would ordinarily uphold

Governments claim of privilege.

35. In R. K. Jain vs. Union of India (AIR 1993 SC 1769) the following

observations of the Apex Court need to be mentioned:

In a democracy it is inherently difficult to function at highgovernmental level without some degree of secrecy. On suchsensitive issues it would hamper to express frank and forthrightviews or opinions. Therefore, it may be that at that level thedeliberations and in exceptional cases that class or category ofdocument gets protection, in particular, on policy matters.Therefore, the Court would be willing to respond to the executivepublic interest immunity to disclose certain documents wherenational security or high policy, high sensitivity is involved.Information relating to national security, diplomatic relations,internal security or sensitive diplomatic correspondence per se areclass documents and that public interest demands total immunityfrom disclosure. Even the slightest divulgence would endanger thelives of the personnel engaged in the services etc.


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36. In Peoples Union for Civil Liberties v. Union of India AIR 2004 SC 1442

the Honble Supreme Court stated that Right to Speech and Publish does not

carry with it an unrestricted right to gather information. A reasonable restriction

on the exercise of the right to know is always permissible in the interest of the

security of the State. In Chairman, Railway Board vs. Chandrima Das (AIR 2000

SC 988) the Court held that fundamental rights guaranteed under Part III of the

Constitution are not absolute in terms. Those rights will be available subject to

such restrictions as may be imposed in the interest of the security of the State, or

other important considerations. Interest of the nation and security of the State is

supreme. Primacy of the interest of the nation and the security of the State will

have to be read into the Universal Declaration as also in every Article dealing

with Fundamental Rights including Article 21.

37. An information requested under the Act can, however, be denied under

the provisions of Section 8 or Section 11. In the instant case too, the CPIO has

also taken recourse to Section 8 (1) (a). In paragraph two and three of the letter

dated November 28, 2005 addressed to the appellant, the CPIO, while denying

the information to the appellant, has stated as under:

It may also be pointed out that in terms of Section 8 (1) (a) of theRight to Information Act, 2005, the information asked for by you, thedisclosure of which would prejudicially affect the sovereignty andintegrity of India, the security, strategic, scientific or economicinterests of the State etc.

In these circumstances, the undersigned expresses its inability toprovide you the copies of the correspondence as desired by youunder the Right to Information Act, 2005.

38. From the above, it is difficult to understand as to on what grounds the

information has been denied. It is also difficult to comprehend as to how the

disclosure of the information is going to affect the strategic, scientific or economic

interests of the State. It appears that the denial has been communicated in a

mechanical manner. Even the Appellate authority has failed to take cognizance


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of these infirmities in the order of denial of information. The Appellate authority

did not examine as to whether the information sought for by the Appellant could

qualify for exemption under Section 8 (1) (a) of the Act.

39. In view of the observations made above and in view of the facts and

circumstances of the case, the only relevant ground for denial could be that the

disclosure could prejudicially affect the security of the nation and not on other

grounds like the strategic, scientific or economic interests of the State etc. It has

however been strongly argued on behalf of the appellant that disclosure will in

fact help restore confidence in a section of the community that was badly

affected by civil strife. In contra, it has been forcefully submitted by the learned

Additional Solicitor General that correspondence concerns a matter involvingnational security and it will not be in public interest to disclose the same. It is

legally permissible for the public authority to deny the information on grounds of

national security under section 8(1)(a). However, a public authority may still

allow access to such information if public interest in disclosure outweighs the

harm to the protected interests. Prima facie the correspondence involves a

sensitive matter of public interest. The sensitivity of the matter and involvement

of a larger public interest has also been admitted by all concerned including theappellant. In S. P. Guptas case, the Honble Supreme Court has held that the

disclosure of documents relating to the affairs of State involves two competing

dimensions of public interest, namely, the right of the citizen to obtain disclosure

of information, which competes with the right of the State to protect the

information relating to its crucial affairs. It was further held that, 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. Since two differing stands have

been taken before us in regard to public interest, applying the decision in SP

Guptas case, 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


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not. Mr. Prashant Bhushan, representing the Appellant has also agreed that

some part of the correspondence may be held to be covered by Section 8(1) (a)

and as such its disclosure may have to be denied, but at the same time he has

submitted that then also it will be the duty of the Commission to sever that part

which is prejudicial to the security and integrity of the State and disclose

remaining part of the correspondence.

40. 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 or 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.

41. . Accordingly we direct the public authority to produce the impugned

documents for our perusal in a sealed cover, at 11.00 A.M. on 22 nd August, 2006

through a senior officer, who shall remain present during perusal and who will

thereafter take them back after sealing the same in our presence.

Summons to that effect be sent accordingly by the Registrar.

Copies of the decision be sent to all concerned free of cost.

Dated this the 8 th day of August 2006

(Wajahat Habibullah) (Padma Balasubramaniam)Chief Information Commissioner Information Commissioner

(M.M. Ansari) (O.P. Kejariwal)Information Commissioner Information Commissioner

CIC Order on Vajpayee-Narayanan Letters on Gujarat Riots

Documents

Transcript of CIC Order on Vajpayee-Narayanan Letters on Gujarat Riots