Appeal No. CIC/MA/A/2006/00121. Case: C. Ramesh Vs Ministry of Personnel, Public Grievances and Pensions. Central Information Commission

Case Number:Appeal No. CIC/MA/A/2006/00121
Party Name:C. Ramesh Vs Ministry of Personnel, Public Grievances and Pensions
Judges:Wajahat Habibullah, C.I.C., Padma Balasubramaniam, M.M. Ansari and O.P. Kejariwal, I.Cs.
Issue:Right to Information Act
Judgement Date:August 08, 2006
Court:Central Information Commission
 
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Decision:

Wajahat Habibullah, C.I.C., Padma Balasubramaniam, M.M. Ansari and O.P. Kejariwal, I.Cs.

1. Shri. C. Ramesh (hereinafter referred to as the "appellant") submitted an appeal on 30.1.06 before this Commission seeking a direction from this Commission to direct the CPIO to disclose the contents of the correspondence exchanged between the former President Late Shri K.R. Narayanan and the former Prime Minister Shri A.B. Vajpayee between the period from 28.2.02 and 15.3.02.. The appeal was received on 6.2.06. The comments from the CPIO were received on 10.5.06. Initially the appeal was heard on 24.5.06 by a Bench consisting of Shri M.M. Ansari acting as the Principal Information Commissioner and Shri A. Tiwari acting as the Companion Commissioner. The Bench took into account the significance of the issues involved and decided to refer it to the Full Bench. The matter was discussed in the Full Bench on 27th June 2006 and it was decided to re-hear the matter. In view of the fact that the appellant is a resident of Vellore it was decided to arrange the hearing through video conferencing. The matter was finally heard on 21.7.06. The Appellant himself argued his case through video conferencing and was also assisted by:

1. Sri Prashant Bhushan, Senior Advocate, and

2. Smt. Aruna Roy, and

3. Prof. Shekhar Singh

who were authorized by him. The CPIO Ms Harjot Kaur, Deputy Secretary and Appellate Authority Shri Brahm Dutt, Additional Secretary, Ministry of Personnel, Public Grievances & pensions were also present along with the Additional Solicitor General, Mr. Mohan Parasaran and were heard by the Commission. It may be mentioned that both the appellant and the CPIO have earlier filed written submissions,

Facts:

2. The appellant submitted an application under the Right to Information Act (hereinafter referred to as "Act") on 7.11.05, seeking copies of all documents/ correspondence exchanged between the former President Late Shri K.R. Narayanan and the former Prime Minister Shri. A.B. Vajpayee between the period from 28.2.02 and 15.3.02. The application was considered by Ms. Harjot Kaur, Deputy Secretary and CPIO of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions (hereinafter referred to as the CPIO). The disclosure of the information was denied by the CPIO on the following grounds:

i) That Justice Nanavati/ Justice Shah Commission of Enquiry also asked for the correspondence between the President, late Shri K. R. Narayanan and the former Prime Minister on Gujarat riots and the Government of India claimed privilege under Section 123 and 124 of the Indian Evidence Act, 1872 and Article 74(2) read with Article 78 and Article 361 of the Constitution.

ii) That in terms of Section 8(1)(a) of the Right to Information Act, 2005, the disclosure of the requested information would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State.

3. Aggrieved by the order of the CPIO, the appellant preferred an appeal on 3.12.05 before Sri Brahm Dutt, Additional Secretary (S & V), Department of Personnel & Training) the designated appellate authority under the Right to Information Act. In his appeal petition, the appellant contended:

i) That the Right to Information Act has an over-riding effect over the Indian Evidence Act and as such the requisite information cannot be denied to him in view of the clear provisions of Section 22 of the said Act.

ii) The information/correspondence between the President and the Prime Minister cannot be denied under the Right to Information Act as such information/ correspondence is not covered under the exemptions provided for under Section 8 of the Act.

iii) The correspondence between the former Prime Minister and the former President is most important to the people of the country and they have a right to know as to how their interests were protected by the Government during the Gujarat riots.

iv) Article 74(2), 78 and 361 nowhere states that the information/ correspondence between the President and the Prime Minister should not be disclosed.

v) That the former President himself at one point of time revealed to the press the brief of what he wrote to the Prime Minister. As such, it cannot be argued that the disclosure of full content of the correspondence will in any way prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific, economic interests of the State.

vi) The CPIO should have applied Section 10 of the Act and should have at least provided that part of the information, which can reasonably be severed from any part that, contains prejudicial information.

4. The Appellate Authority first called for the comments of the CPIO and then forwarded the same to the appellant for his comments. The appellant submitted the parawise remarks, but opted not to present any oral arguments before the Appellate Authority. The CPIO in her parawise comments claimed that the Right to Information Act does not have an over-riding effect in so far as the Indian Evidence Act is concerned. It was also stated that the Government of India has claimed the privilege under constitutional provisions and that the constitutional provisions are supreme and cannot be overridden. The CPIO further reiterated that disclosure of the correspondence exchanged between the President and the Prime Minister would prejudicially affect the sovereignty and integrity of India in terms of Section 8(1)(a) of the Act. The appellant in his comments reiterated his own stand. After considering the submissions, the Appellate Authority rejected the first appeal vide his orders dated 2.1.06. The Appellate Authority agreed with the submissions of the appellant that the Right to Information Act has an overriding effect over the provisions of Officials Secrets Act, the Indian Evidence Act and other laws. The Appellate Authority assertively averred that the relationship between the Right to Information Act and the Constitution of India would be just the opposite. The correspondence in question would fall within the purview of Article 74(2), 78 and 361 of the Constitution and would be entitled to be treated as privileged communication. The Appellate Authority also concluded that publication of such information or furnishing of such information under the Right to Information Act would cause damage to the public interest and accordingly he upheld the order of the CPIO denying the information to the appellant.

5. In his appeal petition before this Commission, the appellant reiterated the same submissions earlier made before the appellate authority and contended that: -

(i) The disclosure of the requested information will help a publiccause, as people in democracy must know what the government is doing.

(ii) The provisions of Section 123 of the Indian Evidence Act stand overridden by the Right to Information Act. Citing the observations of the Hon''ble Supreme Court, in the case of State of UP v. Raj Narain & Ors (AIR 1975 SC 865), the appellant submitted that the claim for immunity should never be a matter of administrative routine nor be a garb to avoid inconvenience, embarrassment or adverse to its defence in the action.

(iii) Article 74(2), 78 and 361 of the Constitution of India don't provide for an absolute ban on the disclosure of correspondence between the President and the Prime Minister. In support of his contention, the appellant has relied upon the observations of the Hon''ble Supreme Court in R.K. Jain v. Union of India. (AIR 1993 SC 1769)

(iv) The CPIO and the appellate authority have failed to appreciate the Constitutional provisions under Article 19(1)(a) that guarantees the Right of Information as a Fundamental Right. There is no repugnancy between the provisions of the Constitution and those of the Right to Information Act. An information required under the Right to Information Act can only be denied if it is covered under the provisions of Section 8 of the Right to Information Act and not otherwise.

(v) The CPIO and the Appellate Authority have failed to furnish concrete justification as to how the disclosure of the information would prejudicially affect the sovereignty and integrity of the nation.

6. The CPIO, on the other hand, in her reply submitted that the Right to Information Act should not be construed as a carte blanche to furnish all information of whatever nature to a citizen who seeks disclosure of the said information by putting forth a claim of public interest. In her detailed reply, the CPIO further contended that: -

(i) The provisions of the Right to Information Act should beconstrued in the light of the provisions of Constitution of India and in terms of the law declared by the Hon''ble Supreme Court and, as such, certain class of documents like the one involved in the present appeal cannot be disclosed in view of the inherent nature of the class of the communications which squarely fall within the ambit of "classified documents", entitled for constitutional protection from disclosure.

(ii) Under Section 8(1)(a) of the Act, an information disclosure that prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State or which would lead to incitement of an offence cannot be disclosed. Likewise under Section 8(1)(i) cabinet papers including records of deliberations between the Council of Ministers, Secretaries and other officers cannot be disclosed till a decision is taken. In the instant case, both Sections i.e. 8(1)(a) and 8(1)(i) would be applicable. Since, no decision was taken one way or the other in the instant case, the proviso to Section 8)1) (i) would be clearly inapplicable.

(iii) The CPIO has cited the following observations of the Hon''ble Supreme Court in Shamsher Singh v. State of Punjab:

President of India is not at...

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