2013 (3) TMI 419 - HC - Indian Laws

Court Rejects RTI Request for President-PM Correspondence on Gujarat Riots. (2)

UNION OF INDIA Versus CENTRAL INFORMATION COMMISSION

The court set aside the Central Information Commission's order and dismissed the application under the RTI Act, holding that the respondent is not ... RTI - Writ Petition – Certiorari. - In this writ petition, Petitioner Union of India, seeking the quashing of the order/judgment passed by the Central Information Commission, directing the production of the document/correspondences, disclosure of all the letters sent by the former President of India, Shri K.R. Narayanan, to the then Prime Minister, Shri A.B. Vajpayee, relating to ‘Gujarat riots. which was sought by Shri C. Ramesh, under the provisions of the Right to Information Act, 2005. Held that:- Right to Information Act, 2005 which was enacted by the Legislature under the powers given under the Constitution of India cannot abrogate, amend, modify or change the bar under Article 74(2) as has been contended by the respondent no. 1. Even if the RTI Act overrides Official Secrets Act, the Indian Evidence Act, however, this cannot be construed in such a manner to hold that the Right to Information Act will override the provisions of the Constitution of India. The Learned Counsel for the respondent no. 2 is unable to satisfy this Court as to how on the basis of the provisions of the RTI Act the mandate of the Constitution of India can be amended or modified. Amendment of any of the provisions of the Constitution can be possible only as per the procedure provided in the Constitution, which is Article 368 and the same cannot be deemed to be amended or obliterated merely on passing of subsequent Statutes. There can be no doubt about the proposition that the Constitution is supreme and that all the authorities function under the Supreme Law of land. 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 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. 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 barred under Article 74(2) of the Constitution of India, the application of the petitioner seeking such an information will also be not maintainable. Issues Involved:1. Whether the Public Authority's claim of privilege under the Law of Evidence is justifiable under the RTI Act, 2005Rs.2. Whether the CPIO or Public Authority can claim immunity from disclosure under Article 74(2) of the ConstitutionRs.3. Whether the denial of information to the appellant can be justified under Section 8(1)(a) or under Section 8(1)(e) of the RTI Act, 2005Rs.4. Whether there is any infirmity in the order passed by the CPIO or by the Appellate Authority denying the requested information to the AppellantRs.Detailed Analysis:1. Claim of Privilege under the Law of Evidence:The Central Information Commission (CIC) observed that Section 22 of the RTI Act, 2005 overrides all other laws, including the Indian Evidence Act. Thus, no public authority could deny information on the ground that it is 'privileged' under the Indian Evidence Act. The CIC relied on various Supreme Court cases, including S.R. Bommai v. Union of India, Rameshwar Prasad v. Union of India, S.P. Gupta v. Union of India, and R.K. Jain v. Union of India, which clarified that Article 74(2) does not bar the production of all material on which ministerial advice is based. The CIC inferred that Articles 74(2), 78, and 361 of the Constitution do not entitle public authorities to claim privilege from disclosure.2. Immunity from Disclosure under Article 74(2):The CIC's decision to call for the correspondence to examine it was challenged by the petitioner, arguing that the CIC does not have the power to call for documents expressly excluded under Article 74(2). The petitioner contended that the correspondence sought is part of the advice rendered by the Council of Ministers to the President and is thus barred from judicial scrutiny. The court agreed, stating that Article 74(2) bars the disclosure of advice rendered by the Council of Ministers to the President. The court emphasized that the CIC cannot override this constitutional protection.3. Justification of Denial under Section 8(1)(a) and 8(1)(e) of the RTI Act:The petitioner argued that the information sought is covered under Sections 8(1)(a) and 8(1)(i) of the RTI Act, which exempts information that could prejudicially affect national security, sovereignty, and integrity of India. The respondents contended that the RTI Act incorporates all restrictions on disclosure and that Articles 74(2), 78, and 361 do not provide privilege from disclosure. The court, however, held that the RTI Act cannot override the constitutional provisions, and the bar under Article 74(2) is absolute.4. Infirmity in the Order of CPIO or Appellate Authority:The court found that the CIC's order to call for the correspondence was legally untenable. The CIC's interpretation that the RTI Act extinguishes the immunity provided under Article 74(2) was rejected. The court stated that the RTI Act cannot amend, modify, or abrogate the provisions of the Constitution. The court concluded that the CIC does not have the authority to call for documents barred under Article 74(2).Conclusion:The court allowed the writ petition, setting aside the CIC's order dated 8th August 2006. The application of respondent no. 2 under Section 6 of the RTI Act, 2005 was dismissed, holding that the respondent is not entitled to the correspondence exchanged between the President and the Prime Minister relating to the Gujarat riots. The court emphasized that the RTI Act cannot override the constitutional bar under Article 74(2), and the CIC does not have the power to call for such privileged documents.