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CIC rejects Perarivalan‘s plea seeking reasons for the rejection of his mercy petition, Allowed to access the Jain and Verma Commission Reports

Esha Saha
15 July 2013 7:44 AM GMT
CIC rejects Perarivalan‘s plea seeking reasons for the rejection of his mercy petition, Allowed to access the Jain and Verma Commission Reports
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The Central Information Commission (CIC) has turned down A G Perarivalan’s petition to seek reasons for the rejection of his mercy petition by the president. A G Perarivalan is a death row convict in Rajiv Gandhi assassination case.

The CIC dismissed his plea on the ground that the reasons for the rejection of his mercy petition were part of the advice tendered by the Council of Ministers to the President. According to Article 74(2) of the Constitution of India, the advice tendered to the President by the Council of Ministers is privileged communication and therefore, cannot be inquired into in any Court.

The CIC held that “The Right to Information Act cannot take away the Constitutional protection, and therefore the disclosure under the RTI Act has to be in consonance with Articles 72 and 74(2).”

Stating that the death sentence awarded to him might be executed at any time, Perarivalan presented his case through video-conference from the Vellore Central Prison for Men and pleaded that the matter pertained to his life and liberty. Joint Secretary of MHA J P Aggarwal and Under Secretary (Judicial) Rakesh Jhingan participated on the other side.

Perarivalan argued that Article 74 of the Constitution only prohibits Courts from enquiring into the advice tendered by the Council of Ministers to the President but it did not bar the right of the affected person to know the reasons. The reasons could not be prohibited from disclosure through any provision of law, except those under the RTI Act.

The Ministry of Home affairs, however, argued that in the case of mercy petitions, file notings of officials, copies of petitions, information received from the State governments/the Union Territories and Court judgments were the documents/information that led to the formation of the ministerial advice to the President. Hence, the documents were also covered by Article 74 (2).

Central Information Commissioner, Sushma Singh held that “The appellant seeks to know the reasons for rejection of his mercy petition filed under Article 72… In this case, the reasons are primarily recorded in the advice tendered by the Council of Ministers which is protected by Article 74 (2)… As held by the Delhi High Court, the provisions of the RTI Act are also bound by the Constitution.”

However, in an another RTI filed by Perarivalan, the CIC directed the MHA to provide Perivalan with the copies of inquiry reports of Justice Jain Commission and Justice J S Verma Commission and copies of action taken report prepared by the Government of India on the recommendations of the said two Commissions within one week of the receipt of the order.  The said two Commissions were set up to inquire into the sequence of events leading to, and all the facts and circumstances relating to the assassination of Rajiv Gandhi at Sriperumbudur and security failures, both personal or systematic during the time of assassination.

In this RTI filed by Perarivalan, he had sought the copies of all records and documents including file notings, minutes of meetings, correspondence relating to the commissions. He also sought the terms of reference relating to the setting up of the said commissions along with certified copies of interim and final reports. He further sought the action taken report prepared by the Government of India.

MHA, instead of collating information from the concerned unit which at a later stage was identified to be VIP Security Unit, transferred the RTI application under section 6(3) of the RTI ACT to all the CPIO’s of the MHA with the reasoning that the information pertains to 20 years old case. Thereafter, every section of MHA cited their inability to provide any information on the ground that the information sought did not concern their division.

Aggrieved by the response received from the MHA, Perarivalan appealed before the first appellate authority of Judicial Division. The appellate authority disposed off the appeal on the ground that the information sought was not available with the judicial division and did not issue any directions to the division in this regard.

Thereinafter, when the matter was brought before the CIC, it condemned the unwarranted delay on the part of the respondent MHA in providing information to the appellant. Taking its cue from Supreme Court of India v. Subhash Chandra Aggarwal where it was clearly stated that “the question of transferring an application under section 6(3) of the RTI by the CPIO of the SC cannot arise”, the CIC, in this case, held that the MHA should not have transferred the RTI application to all CPIO’s of MHA, instead, the nodal CPIO should have identified the concerned CPIO which in this case is the CPIO of VIP Security Unit and marked the RTI application to him.

However, with regard to the information, the respondent MHA had submitted before the CIC that it could locate only some records pertaining to Justice M C Jain commission while complete records of Justice Verma commission are still not traceable. It was also submitted by the MHA that relevant files pertaining to the setting up of these commissions and follow up action thereon, contain inputs received from CBI and IB, which are exempt organizations, in terms of section 24(1) of the RTI Act. Thus, decision on disclosure of contents of these files can only be taken on receipt of views of IB and CBI. It was also established that the first appellate authority in respect of VIP Security Unit did not get an opportunity to examine the contentions of the applicant.

The CIC, after taking these facts into consideration, directed the MHA to “provide the copies of the Justice M C Jain Commission of Inquiry and Justice J S Verma Commission of Inquiry reports and also the action taken reports thereon within one week from the receipt of the order”. The CIC observed that the appellant also insisted on receiving information with regard to setting up of the commissions of inquiry and therefore, held that if such document/information attracted exemptions under the RTI Act then the VIP Security Unit is directed to pass a speaking order within two weeks of the receipt of this order.

The CIC remitted the appeal back to first appellate forum and directed that the appellant may be given an opportunity of hearing by the respondent before the speaking order is passed and the appellant shall reserve the right of second appeal against the order.


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