TaxTMI 
TaxTMI 
2013 (3) TMI 419
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....he 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 f....
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....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. 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 scru....
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....tended that the Commission, which is the appellate authority under 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 ....
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.... 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? (2) Whether the CPIO or Public Authority can claim immunity from disclosure under ....
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....ld 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), 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 th....
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....n 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 decisions 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 Cor....
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....n 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 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 appropr....
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....ter, 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 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 flavours 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. 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 a....
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....24. In Dinesh Trivedi v. 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....
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....ts 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 fulfil 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 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 bearin....
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....e 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. 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 Articles 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....
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....e 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 immunit....
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....e 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 :- "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.................
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....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 = 1988 (36) E.L.T. 201 (S.C.) 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. 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) ....
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....out 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 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 ten....
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....d : "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 assuranc....
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....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....
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....r 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 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 respond....
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....t 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 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 v. Manohar Parikar,....