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High Court of Delhi
ANIL KUMAR
Union of India
versus
Central Information Commission & Another
W.P.(C) No. 13090 of 2006
Decided on : 11-07-2012
RIGHT TO INFORMATION ACT, 2005 - SECTION 74(2) OF THE CONSTITUTION OF INDIA - SECTION 8(1)(A) AND 8(1)(I) OF THE RTI ACT - CORRESPONDENCE BETWEEN PRESIDENT AND PRIME MINISTER - ADVICE TENDERED BY COUNCIL OF MINISTERS - PRIVILEGE - IMMUNITY FROM DISCLOSURE - PUBLIC INTEREST - ARTICLE 19(1)(A) AND 19(2) OF THE CONSTITUTION OF INDIA - ARTICLE 361 OF THE CONSTITUTION OF INDIA - SECTION 22 OF THE RTI ACT - SECTION 18(3) & (4) OF THE RTI ACT - SECTION 123 AND 124 OF THE INDIAN EVIDENCE ACT, 1872 - OFFICIAL SECRETS ACT - ARTICLE 226 & 32 OF THE CONSTITUTION OF INDIA - SCOPE AND APPLICABILITY. The Central Information Commission (CIC) cannot peruse the correspondence/letters exchanged between the former President of India and the then Prime Minister 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.
Fact of the Case:
The petitioner, Union of India, filed a writ petition 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. 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’.
Finding of the Court:
The Court held that: 1. The bar under Article 74(2) of the Constitution of India is absolute 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. 2. 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. 3. 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. 4. The CIC under the Right to Information Act, 2005 has no such constitutional power which is with the High Court and the Supreme Court under Article 226 & 32 of the Constitution of India, therefore, the interim order passed by the CIC for perusal of the record in respect of which there is bar under Article 74(2) of the Constitution of India is wholly illegal and unconstitutional.
Issues: 1. Whether the Central Information Commission (CIC) can peruse the correspondence/letters exchanged between the former President of India and the then Prime Minister 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. 2. Whether 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.
Ratio Decidendi: The Court held that the bar under Article 74(2) of the Constitution of India is absolute 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. 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. 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. The CIC under the Right to Information Act, 2005 has no such constitutional power which is with the High Court and the Supreme Court under Article 226 & 32 of the Constitution of India, therefore, the interim order passed by the CIC for perusal of the record in respect of which there is bar under Article 74(2) of the Constitution of India is wholly illegal and unconstitutional.
Final Decision: The writ petition was 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.
ANIL KUMAR, J.
1. This writ petition has been filed by the petitioner, Union of India, seeking the quashing of the order/judgment dated 8th August, 2006 passed by respondent no.1, Central Information Commission, directing the production of the document/correspondences, disclosure of which was sought by respondent no.2, Shri C. Ramesh, under the provisions of the Right to Information Act, 2005.
2. The brief facts of the case are that the respondent no.2, Shri C. Ramesh, by way of an application under Section 6 of the Right to Information Act, 2005 sought the disclosure from the Central Public Information Officer (hereinafter referred to as „CPIO?) of all the letters sent by the former President of India, Shri K.R. Narayanan, to the then Prime Minister, Shri A.B. Vajpayee, between 28th February, 2002 to 15th March, 2002 relating to „Gujarat riots”.
3. The CPIO by a communication dated 28th November, 2005 denied the request of respondent no.2 on the following grounds:-
“(1) ……..that Justice Nanavati/Justice Shah commission of enquiry had also asked for the correspondence between the President, late Shri K.R.Narayanan and the former Prime minister on Gujarat riots and the privilege under section 123 & 124 of the Indian Evidence Act, 1872 and Article 74(2) read with Article 78 and 361 of the Constitution of India has been claimed by the Government, for production of those documents;
(2) ……that in terms of Section 8(1) (a) of the Right to Information Act, 2005, the information asked for by you, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State etc.”
4. The respondent no.2, thereafter, filed an appeal under Section 19(1) of the Right to Information Act, 2005 before the Additional Secretary (S & V), Department of Personnel and Training, who is the designated first appellate authority under the Act, against the order of the CPIO on the ground that the Right to Information Act, 2005 has an overriding effect over the Indian Evidence Act, 1872 and that the document disclosure of which was sought by him are not protected under Section 8 of the Right to Information Act, 2005 or Articles 74(2), 78 and 361 of the Constitution of India, which appeal was also dismissed by an order dated 2nd January, 2006. The respondent no.2 aggrieved by the order of the first appellate authority preferred a second appeal under Section 19(3) of the Act before the Commission, Respondent no.1. The Commission after hearing the appeal by an order dated 7th July, 2006 referred the same to the full bench of the Commission, respondent no.1, for re-hearing.
5. After hearing the appeal, the full bench of the Commission, upholding the contentions of respondent no.2 passed an order/judgment dated 8th August, 2006, calling for the correspondences, disclosure of which was sought by the respondent no.2 under the provisions of the Right to Information Act, so that it can examine as to whether the disclosure of the same would serve or harm the public interest, after which, appropriate direction to the public authority would be issued. This order dated 8th August, 2006 is under challenge. The direction issued by respondent no.1 is as under:-
“The Commission, after careful consideration has, therefore, decided to call for the correspondence in question and it will examine as to whether its disclosure will serve of harm the public interest. After examining the documents, the Commission will first consider whether it would be in public interest to order disclosure or not, and only then it will issue appropriate directions to the public authority.”
6. The order dated 8th August, 2006 passed by the Central Information Commission, respondent no.1, has been challenged by the petitioner on the ground that the provisions of the Right to Information Act, 2005 should be construed in the light of the provisions of the Constitution of India; that by virtue of Artic
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