In an order dated 14th June 2019, the Central Information Commission held that any file noting or correspondence regarding a mercy petition not forming a part of the Ministerial advice to the President under Article 74 (2) could be divulged and directed the Ministry of Home Affairs to provide such information to the applicant.
The CIC was hearing an application filed by the mother of a death row convict, Pradeep Yeshwanth Kokde imprisoned in Yerwada Central Jail. The application filed under the RTI Act prayed for disclosure of copies of the mercy petition of her son along with copies of file noting and memos or comments pertaining to such petition. When the CPIO rejected her plea and the FAA did not respond to her previous appeal, a second one was filed by her.
During the hearing, the appellant argued that such file noting or comments based on which advice is rendered are not privileged under article 74(2). In response, the MHA contended that Ministerial advice or recommendation rendered to the President under the Article is based upon such documents and hence cannot be segregated from the purview of 'advice to the President' under the Article. In furtherance of their arguments, the respondents relied upon a Delhi High Court judgment wherein an order by the Commission directing the disclosure of correspondence relating to the Gujarat riots between the then Prime Minister and the former President of India was set aside, holding that such correspondence was included within 'advice' rendered.
Article 74 (2) of the Constitution provides 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.
Sudhir Bhargava, the Central Information Commissioner after hearing the parties, referred to a range of Supreme Court, High Court and CIC judgments relating to the exclusionary nature of Article 74 (2) and dismissed the plea of the respondents.
The CIC relied upon the interpretation of Article 74 (2) given in S.R Bommai V. Union of India AIR 1994 1918 wherein it was noted that unlike the reasons which form a part of the advice, Article 74 (2) was no bar to production of all materials on which the ministerial advice was based.
Further, reference was made to the judgment by seven judge bench in S.P Gupta V. Union of India AIR 1982 SC 149, where a similar approach was adopted by holding that material based on which the reasoning and the decision are made would be outside the exclusionary ambit of the Article.
With regards to the nature of the documents which do not constitute such evidence and its disclosure in the interest of law, the Commission further relied upon the case of Union of India V. P.D Khandelwal [W.P (c) 8396 OF 2009] where the Delhi High Court held that documents falling outside article 74 (2) cannot be concealed on the ground that they belong to a class which is granted absolute protection against disclosure. Public interest would be the deciding factor in such cases of disclosure.
An order of the CIC in Sheri Sub has Chandra Agawam V. Ministry of Home Affairs, New Delhi (Appeal No. CIC/SS/A/2012/000051] was also referred to, where it was held file noting and correspondence relating to mercy petitions fall under information not barred by Article 74 (2) and such information has to be tested on the touchstone of Section 8 of the RTI Act.
In light of the above decisions, the Commission held that:
"…File noting and correspondence received or sent by the Ministry of Home Affairs pertaining to the appellant's mercy petition which is not a part of the Ministerial advice to the President as well as the file noting relating to the file of the mercy petition file by Sheri Praveen Yeshwanth Coked as sought by the appellant can be provided to the appellant."
However, considering that the disclosure of the names of the public officials which might be present in such noting may endanger their life and physical safety, the CIC held that such disclosure is exempted under section 8(1) (g) of the RTI Act.
Thus the Commission directed provision of the information to the applicant after severing the names and other references which could reveal the identities of such officials.
Click here to download the order