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TMI Blog2013 (3) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 correspondence between the President and the Prime Minister will be the advice rendered by the President to the Council of Ministers or the Prime Minister and vice versa and cannot be held that the information in question is a material on which the advice is based. In any case the respondent no. 2 has sought copies of the letters that may have been sent by the former President of India to the Prime Minister between the period 28th February, 2002 to 15th March, 2002 relating to the Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation Act, 2005, the information asked for by you, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State etc. 4. The respondent no. 2, thereafter, filed an appeal under Section 19(1) of the Right to Information Act, 2005 before the Additional Secretary (S V), Department of Personnel and Training, who is the designated first appellate authority under the Act, against the order of the CPIO on the ground that the Right to Information Act, 2005 has an overriding effect over the Indian Evidence Act, 1872 and that the document disclosure of which was sought by him are not protected under Section 8 of the Right to Information Act, 2005 or Articles 74(2), 78 and 361 of the Constitution of India, which appeal was also dismissed by an order dated 2nd January, 2006. The respondent no. 2 aggrieved by the order of the first appellate authority preferred a second appeal under Section 19(3) of the Act before the Commission, Respondent no. 1. The Commission after hearing the appeal by an order dated 7th July, 2006 referred the same to the full bench of the Commission, respondent no. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sections 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 over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by respondent no. 2 that the Commission in exercise of its jurisdiction in an appeal can decide as to whether the exemption stipulated in Section 8(1)(a) of the RTI Act is applicable in a particular case, for which reason the impugned order was passed by the Commission, and thus by prohibiting the disclosure of information to the Commission, the petitioner is obstructing the Commission from fulfilling its statutory duties. Also it is urged that the Right to Information Act, 2005 incorporates all the restrictions on the basis of which the disclosure of information by a public authority could be prohibited and that while taking recourse to Section 8 of the Right to Information Act for denying information one cannot go beyond the parameters set forth by the said section. The respondent while admitting that the Right to Information Act cannot override the constitutional provisions, has contended that Articles 74(2), 78 and 361 of the Constitution do not entitle public authorities to claim privilege from disclosure. Also it is submitted that the veil of confidentiality and secrecy in respect of cabinet papers has been lifted by the first proviso to Section 8(1)(i) of the Right to In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may have the advice of Council of Minister or Prime Minister. 11. The Central Information Commission dealt with the following issues while considering the request of respondent no. 2 : (1) Whether the Public Authority s claim of privilege under the Law of Evidence is justifiable under the RTI Act, 2005? (2) Whether the CPIO or Public Authority can claim immunity from disclosure under Article 74(2) of the Constitution? (3) Whether the denial of information to the appellant can be justified in this case under Section 8(1)(a) or under Section 8(1)(e) of the Right to Information Act, 2005? (4) Whether there is any infirmity in the order passed by the CPIO or by the Appellate Authority denying the requested information to the Appellant? While dealing with the first issue the Central Information Commission observed that on perusing Section 22 of the Right to Information Act, 2005, it was clear that it not only overrides 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial value of a decision. [See Ram Rakhi v. Union of India AIR 2002 Del 458 (db), Delhi Admn. (NCT of Delhi) v. Manohar Lal (2002) 7 SCC 222, Haryana Financial Corpn. v. Jagdamba Oil Mills (2002) 3 SCC 496 and Nalini Mahajan (Dr.) v. Director of Income Tax (Investigation) (2002) 257 ITR 123 (Del).] 17. In Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr. (AIR 2004 SC 778), the Supreme Court had held that a decision cannot be relied on without considering the factual situation. In the said judgment the Supreme Court had observed :- Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advice was tendered by the Council of Ministers after consultation with the Chief Justice of Delhi High Court and the Chief Justice of India and thus it was held that the views expressed by the Chief justices could not be said to be an advice and therefore there is no bar on its disclosure. 21. It will be appropriate to consider other precedents also relied on by the parties at this stage. In State of U.P. v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointment of Harish Chandra as President. 23. In People s Union For Civil Liberties Anr. v. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Sodhi Sukhdev Singh, AIR 1961 SC 493, on the representation of the District and Sessions Judge who was removed from the services, an order was passed by the Council of Ministers for his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be the rule and secrecy can be exceptionally justified only where strict requirement of public information is assumed. It was further observed that the approach of the Court must be to alleviate the area of secrecy as much as possible constantly with the requirement of public interest bearing in mind, at all times that the disclosure also serves an important aspect of public interest. In that the said case, the correspondence between the constitutional functionaries was inspected by the Court and disclosed to the opposite parties to formulate their contentions. 27. It was further held that under Section 123 when immunity is claimed from disclosure of certain documents, a preliminary enquiry is to be held in order to determine the validity of the objections to production which necessarily involves an enquiry in the question as to whether the evidence relates to an affairs of State under Section 123 or not. In this enquiry the court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever immunity from disclosure could have been claimed by the State under the law, stands virtually extinguished, except on the ground explicitly mentioned under Section 8 and in some cases under Section 11 of the RTI Act. Thus, CIC has held that the bar under Section 74(2) is not absolute and the bar is subject to the provisions of the RTI Act and the only exception for not disclosing the information is as provided under Sections 8 11 of the RTI Act. The proposition of the respondent No. 1 is not logical and cannot be sustained in the facts and circumstances. The Right to Information Act cannot have overriding effect over the Constitution of India nor can it amend, modify or abrogate the provisions of the Constitution of India in any manner. Even the CIC cannot equate himself with the Constitutional authorities, the Judges of the Supreme Court of India and all High Courts in the States. 31. The respondent no. 1 has also tried to create an exception to Article 74(2) on the ground that the bar within Article 74(2) will not be applicable where correspondence involves a sensitive matter of public interest. The CIC has held as under :- ..Prima facie the correspondence involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gate the constitutional protection under Article 74(2). The said Article refers to inquiry by Courts but will equally apply to CIC. Further it has been observed in para 34 as under :- ....Possibly the only class of documents which are granted immunity from disclosure is those mentioned under Article 74(2) of the Constitution. These are documents or information which are granted immunity from disclosure not because of their contents but because of the class to which they belong. 34. In the circumstances, the bar under Article 74(2) cannot be diluted and whittled down in any manner because of the class of documents it relates to. The respondent no. 1 is not an authority to decide whether the bar under Article 74(2) will apply or not. If it is construed in such a manner then the provision of Article 74(2) will become sub serving to the provisions of the RTI Act which was not the intention of the Legislature and even if it is to be assumed that this is the intention of the Legislature, such an intention, 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Articles 226 32 of the Constitution of India, therefore, the interim order passed by the CIC for perusal of the record in respect of which there is bar under Article 74(2) of the Constitution of India is wholly illegal and unconstitutional. In Doypack Systems (supra) at page 328 the Supreme Court had held as under :- 43. The next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taram 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponsibility. Joint responsibility supersedes individual responsibility; in accepting responsibility for joint decision, each member is entitled to an assurance that he will be held responsible not only for his own, but also as member of the whole Cabinet which made it; that he will be held responsible for maintaining secrecy of any different view which the others may have expressed. The obvious and basic fact is that as part of the machinery of the government. Cabinet secrecy is an essential part of the structure of the government. Confidentiality and collective responsibility in that scenario are twins to effectuate the object of frank and open debate to augment efficiency of public service or affectivity of collective decision to elongate public interest. To hamper and impair them without any compelling or at least strong reasons, would be detrimental to the efficacy of public administration. It would tantamount to wanton rejection of the fruits of democratic governance, and abdication of an office of responsibility and dependability. Maintaining of top secrecy of new taxation policies is a must but leaking budget proposals a day before presentation of the budget may be an excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Minister to the President and the President to the Prime Minister, may not be in public interest and whether it is in public interest or not, is not to be adjudicated as an appellate authority by respondent no. 1. The provisions of the Right to Information Act, 2005 cannot be held to be superior to the provisions of the Constitution of India and it cannot be incorporated so as to negate the bar which flows under Article 74(2) of the Constitution of India. Merely assuming that disclosure of the correspondence between the President and the Prime Minister 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosure of communication from President to the Prime Minister. In case of PIO v. Manohar Parikar, Writ Petition No. 478 of 2008, the Bombay High Court at Goa Bench had held that the protection under Article 361 will not be available for the Governor if any information is sought under RTI Act. However, the reliance on the said precedent cannot be made, as the same judgment has been stayed by the Supreme Court in SLP (C) No. 33124/2011 and is therefore sub judice and consequently the respondents are not entitled for any direction to produce the correspondence which contains the advice rendered by the President to the Prime Minister for the perusal by the CIC. The plea of the respondents that the CIC can call the documents under Section 18 of RTI Act, therefore, cannot be sustained. If the bar under Article 74(2) is absolute so far as it pertains to advices, even under Section 18 such bar cannot be whittled down or diluted nor can the respondents contend that the CIC is entitled to see that correspondence and consequently the respondent no. 2 is entitled for the same. For the foregoing reasons and in the facts and circumstances the order of the CIC dated 8th August, 2006 is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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