WP (C) 13090 of 2006 Page 1 of 44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11.07.2012
+ W.P.(C) No.13090 of 2006
Union of India … Petitioner
versus
Central Information Commission & Anr. … Respondents1. 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.WP (C) 13090 of 2006 Page 2 of 44
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 WP (C) 13090 of 2006 Page 3 of 44
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 WP (C) 13090 of 2006 Page 4 of 44
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. WP (C) 13090 of 2006 Page 5 of 44
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 WP (C) 13090 of 2006 Page 6 of 44
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 WP (C) 13090 of 2006 Page 7 of 44
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 WP (C) 13090 of 2006 Page 8 of 44
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 WP (C) 13090 of 2006 Page 9 of 44
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?WP (C) 13090 of 2006 Page 10 of 44
(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.WP (C) 13090 of 2006 Page 11 of 44
(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), WP (C) 13090 of 2006 Page 12 of 44
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.]WP (C) 13090 of 2006 Page 13 of 44
(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.WP (C) 13090 of 2006 Page 14 of 44
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:-WP (C) 13090 of 2006 Page 15 of 44
" 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 WP (C) 13090 of 2006 Page 16 of 44
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 WP (C) 13090 of 2006 Page 17 of 44
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 WP (C) 13090 of 2006 Page 18 of 44
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 WP (C) 13090 of 2006 Page 19 of 44
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 WP (C) 13090 of 2006 Page 20 of 44
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.WP (C) 13090 of 2006 Page 21 of 44
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 WP (C) 13090 of 2006 Page 22 of 44
from the services, an order was passed by the Council of Ministers for
his re-employment 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 WP (C) 13090 of 2006 Page 23 of 44
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 WP (C) 13090 of 2006 Page 24 of 44
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 WP (C) 13090 of 2006 Page 25 of 44
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.WP (C) 13090 of 2006 Page 26 of 44
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, WP (C) 13090 of 2006 Page 27 of 44
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 WP (C) 13090 of 2006 Page 28 of 44
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 WP (C) 13090 of 2006 Page 29 of 44
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. WP (C) 13090 of 2006 Page 30 of 44
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:-WP (C) 13090 of 2006 Page 31 of 44
“ 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. WP (C) 13090 of 2006 Page 32 of 44
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. WP (C) 13090 of 2006 Page 33 of 44
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 WP (C) 13090 of 2006 Page 34 of 44
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 WP (C) 13090 of 2006 Page 35 of 44
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 WP (C) 13090 of 2006 Page 36 of 44
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 WP (C) 13090 of 2006 Page 37 of 44
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 WP (C) 13090 of 2006 Page 38 of 44
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 WP (C) 13090 of 2006 Page 39 of 44
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 WP (C) 13090 of 2006 Page 40 of 44
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 WP (C) 13090 of 2006 Page 41 of 44
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 WP (C) 13090 of 2006 Page 42 of 44
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 WP (C) 13090 of 2006 Page 43 of 44
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 WP (C) 13090 of 2006 Page 44 of 44
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 ANIL KUMAR, J.
‘k/vk’
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