CENTRAL INFORMATION COMMISSION

(U/S 19 of the Right to Information Act, 2005)

Appeal No. CIC/MA/A/2006/00121

Name of the Appellant: C. Ramesh, No. 20/5, New No. 78, E.S.M. Street,
Arasamarapet, Vellore-632004 Tamil Nadu.

Name of the Public Authority: Ministry of Personnel, Public Grievances and

Pensions.

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

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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 n
I dia 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.

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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.

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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 public
cause, as people in democracy must know what the government is doing.

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 (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 Vs. 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 Vs. 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 be
construed 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

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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 Vs. State of Punjab:

"President of India is not at all a glorified cipher. He

represents the majority of the State, is at the Apex,
though only symbolically, and has rapport with the
people and parties, being above politics. His vigilant
presence makes for good government, if only he
uses, what Bagehot described as the "Right to be
consulted to warn and encourage". Indeed Article 78
wisely used, keeps the President in close touch with
the Prime Minister of matters of national importance
and policy significance and there is no doubt that the
imprint of his personality may chasen and correct the
political government."

Relying on these observations, she has contended that the

correspondence exchanged between the President and the Prime
Minister, in this case, is highly sensitive, involving security interests of the
country apart from sovereignty and integrity of the nation, the said
correspondence cannot be disclosed.

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 iv) The CPIO has further relied upon the observations of the
Hon’ble Supreme Court in Doy Pack Systems Pvt. Ltd. Vs Union of India
(1988 (2) SCC 299) In Paragraph 46 of the said decision, the Hon'ble
Supreme Court has observed as follows:

“Cabinet papers are therefore, protected from

disclosure, not by reason of their contents, but
because of the class to which they belong. It appears
to us that the cabinet papers also include papers
brought into existence for the purpose of preparing
submissions to the Cabinet”

v) The CPIO has accordingly submitted that the

correspondence between the Prime Minister and the President are purely
in the nature of rendering a mutual suggestion or advice, which are well
within the realm of Article 74(2) of the Constitution and these are,
therefore, belonging to a separate class.

vi) The CPIO has also cited S.R. Bommai Vs. Union of India
wherein Hon’ble Supreme Court has observed that it will not ask as to
what advice was tendered to the President or as to what statements were
given and how the ultimate decision was arrived at. The court has clearly
ruled that:

“Clause (2) of Article 74, understood in its proper

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."

vii) Even the selective disclosure as sought for by the Appellant

would also only harm, rather than promoting public interest and in any
event, as the document fall under a separate category of “classified
document" the same cannot be disclosed.

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 viii) The Right to Information Act cannot override the
Constitution. The State can put restrictions under Article 19(2) on the
Freedom of Speech and Expression, which include Right to Information.

ix) In the instant case communication has emanated from the

President to the Prime Minister unlike in cases including in the case of
S.P. Gupta in which case the exchange of correspondence was between
the executive Head of the State, High Court, Central Government and the
Supreme Court.

x) The entire correspondence exchanged between the then

Prime Minister and the then President being fully protected under Article
74(2) is exempted from disclosure under the Right to Information Act and
the Constitution of India.

x) The decision not to disclose the information was taken with

utmost responsibility. This correspondence was exchanged during a
critical time in a state and any disclosure of the same would result in
damage to the public interest.

7. While presenting his case, the appellant Sh. C. Ramesh submitted that
Right to Information is an integral part of Article 21 and Article 19 of the
Constitution of India and that Hon’ble Supreme Court has so held in a number of
cases. He also submitted that Article 74 (2), 78 and 361 which have been relied
upon by the respondents to deny him the information under the Right to
Information Act, cannot over-ride Article 19 and 21 of the Constitution of India.
He also submitted that since the Right to Information is an integral part of Article
19 and 21, objection, if any, can only be raised under the provisions of Section 8
of the Right to Information and not elsewhere.

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8. 8. Shri Prashant Bhushan, senior Advocate arguing on behalf of the appellant,
at the very outset, submitted that Preamble to the Right to Information Act which
contains the objectives of the Act is very important as it sets out to establish a
practical regime of Right to Information for citizens to secure access to
information in order to promote transparency and accountability in the working of
every public authority. The Act has been enacted with a view to fulfill the basic
requirements of a democratic State. The Act aims at operationalising democracy,
which has been held to be a corner stone and a basic feature of our Constitution.
Conceding that Section 22 of the Act, which gives an overriding effect to the
Right to Information definitely does not include and override Constitutional
provisions, he however submitted that the Central Information Commission being
a creature of the Right to Information Act cannot be called upon to invalidate the
Right to Information Act, as a whole, or any of its provisions. In this connection
he cited following observation of the Hon’ble Supreme Court in L. Chandra
Kumar’s case (1997) 3 SCC 261

“The Tribunals shall not entertain any question regarding the

vires of their parent statutes following the settled principle that a
Tribunal which is a creature of an Act cannot declare that very Act
to be unconstitutional. In such cases alone, the concerned High
Court may be approached directly. All other decisions of these
Tribunals, rendered in cases that they are specifically empowered
to adjudicate upon by virtue of their parent statutes, will also be
subject to scrutiny before a Division Bench of their respective High
Courts. We may add that the Tribunals will, however, continue to
act as the only courts of first instance in respect of the areas of law
for which they have been constituted. By this, we mean that it will
not be open for litigants to directly approach the High Courts even
in cases where they question the vires of statutory legislations
(except, as mentioned, where the legislation which creates the
particular Tribunal is challenged) by overlooking the jurisdiction of
the concerned Tribunal.”

9. He also submitted that even much before the Right to Information was
given a statutory recognition, it has all along been held as an integral part of
Freedom of Speech & Expression guaranteed under Article 19(1)(a) as a

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Fundamental Right. In support of his submission, he cited the following
observations of Hon’ble Supreme Court in Raj Narain vs State of U.P. (1975 (3)
SCR 360)

“In a government of responsibility like ours, where all the agents

of the public must be responsible for their conduct, there can but
few secrets. The people of this country have a right to know every
public act, everything, that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every
public transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though not
absolute, is a factor which should make one wary, when secrecy
is claimed for transactions which can, at any rate, have no
repercussion on public security To cover with veil secrecy the
common routine business, is not in the interest of the public. Such
secrecy can seldom be legitimately desired. It is generally desired
for the purpose of parties and politics or personal self-interest or
bureaucratic routine. The responsibility of officials to explain and
to justify their acts is the chief safeguard against oppression and
corruption.”

10. Quoting extensively from S.C. Gupta’s Case popularly known as the First
Judge’s case (1982(2) SCR 365), he submitted that since the Right to
Information is a Fundamental Right, being a part of Article 19(1)(a), a Public
Authority can refuse disclosure of an information only if it is going to harm public
interest. In the same way, while taking recourse to Section 8 of the Right to
Information Act for denying the information, it cannot go beyond the parameters
set forth by Section 8 of the Right to Information Act. In this connection he
particularly referred to the following observations of the Apex Court:

“No democratic Government can survive without accountability and

the basic postulate of accountability is that the people should have
information about the functioning of government. It is only if people
know how government is functioning that they can fulfill the role
which democracy assigns to them and make democracy a really
effective participatory democracy. "Knowledge" said James
Madison, "will for ever govern ignorance and a people who mean to

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 be their own governors must arm themselves with the power
knowledge gives. A popular government without popular
information or the means of obtaining it is but a prologue to a farce
or tragedy or perhaps both". The citizens' right to know the facts,
the true facts, about the administration of the country is thus one of
the pillars of a democratic State. And that is why the demand for
openness in the government is increasingly growing in different
parts of the world.”

11. Refuting the stand taken by the respondents, he submitted that the
information requested by the appellant couldn’t be withheld or denied under
Article 74(2). Referring to the Hon’ble Apex Court’s decision in S.R. Bommai’s
case (AIR 1994 SC 1918) he submitted that what the appellant has sought is the
copies of the correspondence and not as to what advice was tendered by the
Council of Ministers to the President and the correspondence that has emanated
from President to the Prime Minister cannot be termed as an “Advice” tendered
by the Council of Ministers so that it could be brought within the ambit of Article
74(2) of the Constitution of India. Reply to the argument about the applicability of
Article 74(2) and 361 of the Constitution of India, the learned Counsel submitted
that even though, the Courts cannot go into the question as to what advice, if
any, was tendered to the President, but people have a right to know as to
whether any such advice was given and, if so, as to what it was. In so far as the
present case is concerned, the appellant is seeking information not about the
‘advice’ but only about the ‘correspondence’.

12. The learned Counsel also submitted that the information cannot be denied
or withheld at this stage even on the ground of security of State u/s 8(1)(a) as it
has become a matter of past. Replying to a query form Smt. Padma
Balasubramanian, Information Commissioner, Shri Prashant Bhushan submitted
that in the instant case, public interest would be better served by disclosure
rather than by denial. Srimati Aruna Roy representing the appellant, also

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submitted that the disclosure will be a part of larger democratic interests of the
people. Citing the proviso to Sec. 8(1)(i) of the Right to Information Act, Sri
Bhushan submitted that once the cabinet decision has already been taken or
once the matter is complete or over, no information in respect thereto can be
withheld or denied under the provisions of the Right to Information Act and in
such a situation, Article 74(2) does not remain relevant and on that ground alone
the decision of the first Appellate Authority denying the information to the
appellant is rendered unsustainable.

13. Prof Shekhar Singh representing the appellant submitted that the Right to
Information Act starts with an assumption that disclosure of every information is
in “public interest” unless it is barred under section 8 of the Act. Mr. Prashant
Bhushan also submitted that even if some part of the correspondence is held to
be covered by Sec. 8(1)(a) and, as such, its disclosure is to be denied then also
it will be the duty of the Central Information Commission to sever that part which
is prejudicial to the security and integrity of the country and disclose the
remaining part of the correspondence. He also mentioned in this connection that,
in any case, some part of it has already gone in public domain as a result of
disclosure made by none other than the former President of India himself.

14. Submitting his arguments on behalf of Government of India, Department

of Personnel and Training, the learned Addl. Solicitor General submitted that the
Right to Information Act is subject to the content and intent to the Constitutional
provisions and since the present case is concerned with the information that
emanated from the President, it is very well covered within the ambit of Article 74
and 78 to the Constitution of India. In this context, he cited the following
observations from Shamsher Singh Vs. The State (AIR 1974 SC 2192):

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 “The President in India is not at all a glorified cipher. He represents
the majesty of the State, is at the apex, though only symbolically,
and has rapport with the people and parties, being above politics.
His vigilant presence makes for good government if only he uses,
what Bagehot described as, 'the right to be consulted, to warn and
encourage'. Indeed, Article 78 wisely used, keeps the President in
close touch with the Prime Minister on matters of national
importance and policy significance, and there is no doubt that the
imprint of his personality may chasten and correct the political
government, although the actual exercise of the functions entrusted
to him by law is in effect and in law carried on by his duly appointed
mentors, i.e., the Prime Minister and his colleagues. In short, the
President, like the King, has not merely been constitutionally
romanticised but actually vested with a pervasive and persuasive
role. Political theorists are quite conversant with the dynamic role of
the Crown, which keeps away from politics and power and yet
influences both. While he plays such a role, he is not a rival centre
of power in any sense and must abide by and act on the advice
tendered by his Ministers except in a narrow territory which is
sometimes slippery.”

15. He also submitted that the President of India is not an individual but a
Constitutional functionary and it is in this context that Article 361 of the
Constitution becomes extremely relevant which gives an almost absolute
immunity to the President. Article 74(1) clearly provides that 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. In this context Article 74(2), is very important which clearly stipulates that
the President shall not be answerable to any court. Article 74(2) reads as under:

“The question whether any, and if so what, advice was tendered by

Ministers to the President shall not be inquired into in any court”.

16. Pointing out that the correspondence relates to a matter of national

importance involving sensitive information about national security, he submitted
that the plea of the appellant that the President has himself disclosed the content
of the correspondence in the press is not acceptable and the information cannot
be given as the purported statement made by the President before the press if at
all it was made, it was in his individual capacity.

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17. He further pointed out that the Commission should take into account that
the term “advice” appearing in Article 74(2) covers the entire interaction between
the President and the Prime Minister and the Council of Ministers and whatever
has happened within this inner circle is beyond the reach of any Court under
Article 74(2). In a case like this, the proviso to Sec. 8(1)(i) is clearly inapplicable.
Because what has been asked for is the “correspondence” between the
President and the Prime Minister and that is about the discussion and
deliberation between the President and the Prime Minister and, as such, these
deliberations cannot be equated with a cabinet decision which has become liable
to be disclosed once it is ‘complete’ or ‘over’, in terms of proviso to Sec. 8(1)(i) of
the Right to Information Act. He also pointed out that many of the decisions that
are taken on behalf and in the name of the President might not even reach the
President. In this context, the Addl. Solicitor General referred to the following
observations in the S.R. Bommai case. (1994(3) SCC 1):

“The idea behind Clause (2) is this: the Court is not to enquire - it is
not concerned with - whether any advice was tendered by any
Minister or Council of Ministers to the President, and if so, what
was that advice. That is a matter between the President and his
Council of Ministers. What advice was tendered, whether it was
required to be reconsidered, what advice was tendered after
reconsideration, if any, what was the opinion of the President,
whether the advice was changed pursuant to further discussion, if
any, and how the ultimate decision was arrived at, are all matters
between the President and his Council of Ministers. They are
beyond the ken of the Court. The Court is not to go into it. It is
enough that there is an order/act of the President in appropriate
form. It will take it as the order/act of the President. It is concerned
only with the validity of the order and legality of the proceeding or
action taken by the President in exercise of his functions and not
with what happened in the inner Councils of the President and his
Ministers. No one can challenge such decision or action on the
ground that it is not in accordance with the advice tendered by the
Ministers or that it is based on no advice.”

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18. The fact that the former President has himself revealed some content of
the deliberation also came for discussion during the hearing and it was also
brought to the notice of the Commission that before passing the decision, the
CPIO has gone through the contents of the correspondence. It was also pointed
out that the correspondence may consist of a few letters exchanged between the
then President and the then Prime Minister. In response to a query from
Information Commissioner Shri O.P. Kejariwal, the Addl. Solicitor General
conceded that the President is also a Public Authority as any other Public
Authority.

19. Replying to the arguments of the Addl. Solicitor General, Shri Prashant
Bhushan submitted that Article 361 cannot be interpreted so as to mean that the
President is not even answerable to the people. Definitely, the President is not
beyond public scrutiny even though, he may not be answerable to the Courts.
The appellant also stated in reply that the Presidential privilege cannot override
his rights guaranteed under Article 19(1)(a), since Right to Information is a
mechanism to avail those rights which cannot be denied. He also stated that in
participatory governance, Government cannot seek any privilege against its
citizens and under the provisions of the Right to Information what cannot be
denied to the Parliament, cannot be denied to a citizen.

Issues:

20. In view of the facts of the case and submissions made before this
Commission, following issues need to be determined:

1. Whether the Public Authority’s claim of privilege under the Law of

Evidence is justifiable under the RTI Act, 2005?

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 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?

Decision and Reasons:

21. The first question that needs to be determined in this case is as to whether
the provisions of the Indian Evidence Act stands over-ridden by the Right to
Information Act, 2005? In this connection it is pertinent to refer to provisions of
Section 22 of the Act, which reads as under:

“The provisions of this Act shall have effect notwithstanding

anything inconsistent therewith contained in the Official Secrets
Act, 1923, and any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act.”

22. A plain reading of Section 22 makes it clear that it not only over-rides the
Official Secrets Act, but also all other laws and that ipso facto include the Indian
Evidence Act. In view of this no public authority can claim to deny any
information on the ground that it happens to be a “privileged” one under the
Indian Evidence Act. Section 3 of the Right to Information Act confers a right on
all citizens to obtain information and it casts an obligation on all public authorities
to provide the information so demanded. The right thus conferred is only subject
to the other provisions of the Act and to no other law.

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23. The second question that needs to be determined is as to whether the
Government or for that matter a public authority can deny or refuse to give an
information to a citizen on the ground that the information so demanded is
covered by Article 74 (2), 78 or Article 361 of the Constitution of India and as
such it cannot be furnished. In this case the CPIO and the Appellate Authority
have argued that the Right to Information Act does not and cannot override the
Constitutional provisions. On the other hand the Appellant has submitted that
there is no repugnancy between the Right to Information conferred by the Act
and the constitutional provisions taken recourse to by the CPIO and by the
Appellate Authority for denying the requested information. The Appellant has
submitted that none of these Articles anywhere state that the
information/correspondence between the President and the Prime Minister
should not be disclosed. As observed by the Hon’ble Apex Court in Bommai’s
case, Article 361 is the manifestation of the theory prevalent in English law that
'King can do no wrong' and, for that reason, his actions are beyond the process
of the court. Any and every action taken by the President is really the action of
his ministers and subordinates. It is they, who have to answer for, defend and
justify any and every action taken by them in the name of the President, if such
action is questioned in a Court of law. The President cannot be called upon to
answer for or justify the action. It is for the Council of Ministers to do so. Where
the President acts through his subordinates, it is for the subordinate to defend
the action.

24. Before deciding the issue of applicability of Article 74(2) to the instant
case, it is pertinent to refer again to the provisions of Article 74(2), which clearly
stipulates that the court shall not inquire into whether any advice was at all
tendered and even if there was any such advice, the court shall not inquire as to
what advice was tendered. In this connection the following observations of
Justice Sawant and Justice Kuldip Singh in S. R. Bommai vs. Union of India (AIR
1994 SC 1918) regarding the scope and ambit of Article 74(2) are quite relevant:

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 “The object of Article 74(2) was not to exclude any material or
documents from the scrutiny of the Courts but to provide that an
order issued by or in the name of the President could not be
questioned on the ground that it was either contrary to the advice
tendered by the Ministers or was issued without obtaining any
advice from the Ministers. Its object was only to make the question
whether the President had followed the advice of the Ministers or
acted contrary thereto, non-justiciable.”

Justice Ahmadi also agreed that Article 74(2) is no bar to the production of
all the material on which the ministerial advice was based. This issue has been
further clarified in a recent case by the Hon’ble Supreme Court (Rameshwar
Prasad and Ors.vs. Union of India and Anr.AIR2006SC980):

“A plain reading of Article 74(2) stating that the question whether any,
and if so what, advice was tendered by Ministers to the President shall
not be inquired into in any Court, may seem to convey that the Court is
debarred from inquiring into such advice but Bommai has held that
Article74 (2) is not a bar against scrutiny of the material.”

25. In S.P Gupta’s case the question arose as to whether the views expressed
by the Chief Justice of the High Court and the Chief Justice of India on
consultation form part of the advice. In this case the two Chief Justices were
consulted on "full and identical facts" and their views were obtained and it is after
considering those views that the Council of Ministers tendered its advice to the
President. The views expressed by the two Chief Justices preceded the
formation of the advice. The Hon’ble Supreme Court clearly held that merely
because their views are referred to in the advice that is ultimately tendered by the
Council of Ministers, they do not necessarily become part of the advice. The
Court further ruled that what is protected against disclosure under clause (2) of
Article 74 is only the advice tendered by the Council of Ministers. The reasons
that have weighed with the Council of Ministers in giving the advice would
certainly form part of the advice. But the material on which the reasoning of the
Council of Ministers is based and advice given cannot be said to form part of the
advice. The Hon’ble Apex Court illustrating the point with the example of a
judgment clearly laid down the law as follows:

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 “The judgment would undoubtedly be based on the evidence led
before the Court and it would refer to such evidence and discuss it
but on that account can it be said that the evidence forms part of
the judgment? The judgment would consist only of the decision and
the reasons in support of it and the evidence on which the
reasoning and the decision are based would not be part of the
judgment. Similarly the material on which the advice tendered by
the Council of Ministers is based cannot be said to be part of the
advice and the correspondence exchanged between the Law
Minister, the Chief Justice of Delhi and the Chief Justice of India
which constituted the material forming the basis of the decision of
the Central Government must accordingly be held to be outside the
exclusionary rule enacted in clause (2) of Article 74.”

26. The appellant has in this connection referred to the decision of the Hon’ble
Supreme Court in R. K. Jain vs. Union of India & Ors. (AIR 1993 SC 1769)
wherein the Apex Court has held the claim of the State Minister and the State
Secretary for immunity of state documents from disclosure as unsustainable. But
in this case , the Hon’ble Court did not find it necessary to disclose the contents
to the petitioner or to his counsel. It may be mentioned that in this case the
immunity was claimed by the State under the Evidence Act as well as under the
constitutional provisions and the Hon’ble Court refused to grant a general
immunity so as to cover that no document in any particular class or one of the
categories of Cabinet papers or decisions or contents thereof should be ordered
to be produced.

27. It would not be out of context to refer to the decision of the Apex Court in
State of Punjab vs. Sukhdev Singh AIR 1961 SC 493, wherein the Hon’ble Court
held that the documents which embody the minutes of the meetings of the
Council of Ministers and indicate the advice given by the Council cannot be
produced in a court of law unless their production is permitted by the head of the
department. It was not for the court to go into the question as to whether the
public interest will be really injured or not by its disclosure. But in State of U.P.
vs. Raj Narain (AIR 1975 SC 884) the following observations of Hon’ble Justice
Mathew are worth quoting:

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 “In a government of responsibility like ours, where all the agents of
the public must be responsible for their conduct, there can be but
few secrets. The people of this country have a right to know every
public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every
public transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, through not
absolute, is a factor which should make one wary, when secrecy is
claimed for transactions which can, at any rate, have no
repercussion on public security. To cover with veil of secrecy, the
common routine business is not in the interest of the public. Such
secrecy can seldom be legitimately desired. “

28. The case of S.P. Gupta v. Union of India, 1981 SCC Supp. 87, decided by
a seven-Judge Constitution Bench is generally considered as having broken new
ground and having added a fresh, liberal dimension to the need for increased
disclosure in matters relating to public affairs. In that case, the consensus that
emerged amongst the Judges was that in regard to the functioning of
government, disclosure of information must be the ordinary rule while secrecy
must be an exception, justifiable only when it is demanded by the requirement of
public interest.

29. In Dinesh Trivedi vs. Union of India (1997) 4 SCC 306 the Court reiterated
the limitations of the Right to Information Act. In this context, the following
observations of the Supreme Court are noteworthy.

“In modern constitutional democracies, it is axiomatic that citizens

have a right to know about the affairs of the Government which,
having been elected by them seeks to formulate sound policies of
governance aimed at their welfare. However, like all other rights,
even this right has recognized limitations; it is, by no means,
absolute. “

30. In Doypack Systems Pvt. Ltd. etc. vs. Union of India (AIR 1988 SC 782),
the production of the documents was resisted by the Attorney-General on behalf
of the Union of India on the ground that the documents were not relevant and in
any event most of them were ‘privileged’ being part of the documents leading to

20
the tendering of the advice by the Cabinet to the President, as contemplated by
Article 74(2) of the Constitution. Rejecting the claim for production of the
documents, the Hon’ble Supreme Court held as follows:

“It is settled law and it was so clearly recognised in Raj Narain's

case (supra) 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 recognises 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 the law as entitled in the public interest to be
protected against disclosure and that class consists of documents
that it is really necessary for the proper functioning of the public
service to withhold from disclosure. The documents falling within
this class are granted immunity from disclosure not because of their
contents but because of the class to which they belong. This class
includes cabinet minutes, minutes of discussions between heads of
departments, high level inter-departmental communications and
dispatches from ambassadors abroad “Cabinet papers are,
therefore, protected from disclosure not by reason of their contents
but because of the class to which they belong. It appears to us that
Cabinet papers also include papers brought into existence for the
purpose of preparing submission to the Cabinet.”

31. From the above decisions of the Apex Court, it may be 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. Now 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. In this context, it would be pertinent to refer to the provisions of
Section 8 of the Right to Information Act, which enlists various exemptions and
clause (1)(i) whereof reads as under:

(i) Cabinet papers including records of deliberations of the Council of

Ministers, Secretaries and other officers:

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 Provided that the decisions of Council of Ministers, the reasons
thereof, and the material on the basis of which the decisions were
taken shall be made public after the decision has been taken, and the
matter is complete, or over:

Provided further that those matters, which come under the

exemptions specified in this section, shall not be disclosed.

32. From the above, it appears that the Cabinet papers including records of
deliberations of the Council of Ministers, Secretaries and other officers shall be
made public, once a decision has been taken or the matter is complete. As such,
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 Information Act, 2005. Thus
Cabinet papers including records of deliberations of the Council of Ministers, etc.
can be withheld or disclosure whereof can be denied only if:
i) the matter is still pending or :
ii) the information comes within one of the specified exemptions
under section 8(1).

33. In view of the above observations, the CPIO cannot deny information
sought under the Right to Information Act by taking recourse to either the Law of
Evidence or Article 74(2), of the Constitution of India. In this connection, it would
be pertinent to refer to a latest decision of the Apex Court in Rameshwar Prasad
and Ors.vs. Union of India (UOI) and Anr.(AIR2006SC980) wherein it has been
clearly mentioned that every material that the President sees or is placed before
him does not become a part of the ‘advice’. The following observations in the
said case are worth quoting:

“But it is difficult to appreciate how does the supporting material,

becomes part of advice. The respondents cannot .say that
whatever the President sees -- or whatever is placed before the
President becomes prohibited material and cannot be seen or
summoned by the Court.”

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34. This, however, does not mean that the disclosure can be claimed as a
matter of right in respect of all types/categories of information/ correspondence.
Even in S. P. Gupta’s case, the Hon’ble Supreme Court held that the disclosure
of documents relating to affairs of State involves two competing dimensions of
public interest, namely, the right of the citizen to obtain disclosure of information,
which competes with the right of the State to protect the information relating to its
crucial affairs. It was further held that, in deciding whether or not to disclose the
contents of a particular document, a Judge must balance the competing interests
and make final decision depending upon the particular facts involved in each
individual case. It is important to note that it was conceded that there are certain
classes of documents which are necessarily required to be protected, e.g.
Cabinet Minutes, documents concerning the national safety, documents which
affect diplomatic relations or relate to some State secrets of the highest
importance, and the like in respect of which the Court would ordinarily uphold
Government’s claim of privilege.

35. In R. K. Jain vs. Union of India (AIR 1993 SC 1769) the following
observations of the Apex Court need to be mentioned:

“In a democracy it is inherently difficult to function at high

governmental level without some degree of secrecy. On such
sensitive issues it would hamper to express frank and forthright
views or opinions. Therefore, it may be that at that level the
deliberations and in exceptional cases that class or category of
document gets protection, in particular, on policy matters.
Therefore, the Court would be willing to respond to the executive
public interest immunity to disclose certain documents where
national security or high policy, high sensitivity is involved.
Information relating to national security, diplomatic relations,
internal security or sensitive diplomatic correspondence per se are
class documents and that public interest demands total immunity
from disclosure. Even the slightest divulgence would endanger the
lives of the personnel engaged in the services etc.”

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36. In People’s Union for Civil Liberties v. Union of India AIR 2004 SC 1442
the Hon’ble Supreme Court stated that Right to Speech and Publish does not
carry with it an unrestricted right to gather information. A reasonable restriction
on the exercise of the right to know is always permissible in the interest of the
security of the State. In Chairman, Railway Board vs. Chandrima Das (AIR 2000
SC 988) the Court held that fundamental rights guaranteed under Part III of the
Constitution are not absolute in terms. Those rights will be available subject to
such restrictions as may be imposed in the interest of the security of the State, or
other important considerations. Interest of the nation and security of the State is
supreme. Primacy of the interest of the nation and the security of the State will
have to be read into the Universal Declaration as also in every Article dealing
with Fundamental Rights including Article 21.

37. An information requested under the Act can, however, be denied under
the provisions of Section 8 or Section 11. In the instant case too, the CPIO has
also taken recourse to Section 8 (1) (a). In paragraph two and three of the letter
dated November 28, 2005 addressed to the appellant, the CPIO, while denying
the information to the appellant, has stated as under:

“It may also be pointed out 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.

In these circumstances, the undersigned expresses its inability to

provide you the copies of the correspondence as desired by you
under the Right to Information Act, 2005.”

38. From the above, it is difficult to understand as to on what grounds the

information has been denied. It is also difficult to comprehend as to how the
disclosure of the information is going to affect the strategic, scientific or economic
interests of the State. It appears that the denial has been communicated in a
mechanical manner. Even the Appellate authority has failed to take cognizance

24
of these infirmities in the order of denial of information. The Appellate authority
did not examine as to whether the information sought for by the Appellant could
qualify for exemption under Section 8 (1) (a) of the Act.

39. In view of the observations made above and in view of the facts and
circumstances of the case, the only relevant ground for denial could be that the
disclosure could prejudicially affect the security of the nation and not on other
grounds like the strategic, scientific or economic interests of the State etc. It has
however been strongly argued on behalf of the appellant that disclosure will in
fact help restore confidence in a section of the community that was badly
affected by civil strife. In contra, it has been forcefully submitted by the learned
Additional Solicitor General that correspondence concerns a matter involving
national security and it will not be in public interest to disclose the same. It is
legally permissible for the public authority to deny the information on grounds of
national security under section 8(1)(a). However, a public authority may still
allow access to such information if public interest in disclosure outweighs the
harm to the protected interests. Prima facie the correspondence involves a
sensitive matter of public interest. The sensitivity of the matter and involvement
of a larger public interest has also been admitted by all concerned including the
appellant. In S. P. Gupta’s case, the Hon’ble Supreme Court has held that the
disclosure of documents relating to the affairs of State involves two competing
dimensions of public interest, namely, the right of the citizen to obtain disclosure
of information, which competes with the right of the State to protect the
information relating to its crucial affairs. It was further held that, in deciding
whether or not to disclose the contents of a particular document, a Judge must
balance the competing interests and make final decision depending upon the
particular facts involved in each individual case. Since two differing stands have
been taken before us in regard to public interest, applying the decision in SP
Gupta’s case, we consider it appropriate, that, before taking a final decision on
this appeal, we should personally examine the documents to decide whether
larger public interest would require disclosure of the documents in question or

25
not. Mr. Prashant Bhushan, representing the Appellant has also agreed that
some part of the correspondence may be held to be covered by Section 8(1) (a)
and as such its disclosure may have to be denied, but at the same time he has
submitted that then also it will be the duty of the Commission to sever that part
which is prejudicial to the security and integrity of the State and disclose
remaining part of the correspondence.

40. 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 or 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.

41. . Accordingly we direct the public authority to produce the impugned

documents for our perusal in a sealed cover, at 11.00 A.M. on 22nd August, 2006
through a senior officer, who shall remain present during perusal and who will
thereafter take them back after sealing the same in our presence.

Summons to that effect be sent accordingly by the Registrar.

Copies of the decision be sent to all concerned free of cost.

Dated this the 8th day of August 2006

(Wajahat Habibullah) (Padma Balasubramaniam)

Chief Information Commissioner Information Commissioner

(M.M. Ansari) (O.P. Kejariwal)

Information Commissioner Information Commissioner

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