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RTI >> Judgments >> CIC >> Exemption >> Cabinet Papers
Supreme Court(Cabinet Papers)/ High Courts(Cabinet Papers)
1 12 Jun, 2019 Ujwala Kokde VS. CPIO, Ministry of Home Affairs, Judicial Division, Delhi

Information Sought
The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), Judicial Division, Ministry of Home Affairs, New Delhi seeking information on seven points pertaining to mercy petition of her son Pradeep Yeshwanth Kokde who is a death row convict lodged at Yerwada Central Jail, including, inter-alia (i) copy of any memo/note/ comment made in relation to the mercy petition filed by Pradeep Yeshwanth Kokde, (ii) copy of the entire mercy petition file of Pradeep Yeshwanth Kokde, and (iii) copy of the file notings pertaining to the file of the mercy petition filed by Pradeep Yeshwanth Kokde.

The appellant filed a second appeal on the ground that the CPIO denied the information under Article 74(2) of Constitution of India and that the FAA did not respond to her appeal. The appellant stated that what is protected against disclosure under clause (2) of Article 74 of the Constitution is only the advice tendered by the Council of Ministers and that the information sought by her does not pertain to Ministerial Advice which is protected under Article 74(2) of the Constitution.

The Commission, after hearing the submissions of both the parties and perusing the records, notes that Article 74(2) of the Constitution of India reads as under:

“74. Council of Ministers to aid and advise President.-(1) 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.

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

The Hon’ble Supreme Court in S.R. Bommai vs Union Of India : 1994 AIR 1918 on 11 March, 1994 had observed:

“33. Before I deal with the said issue I may dispose of the question whether the provision of Article 74(2) of the Constitution permits withholding of the reasons and material forming the basis for the ministerial advice tendered to the President. … Article 74(2) then provides that "the question whether any, and if so what, advice was tendered to the President shall not be inquired into in any Court". What this clause bars from being inquired into is "whether any, and if so what, advice was tendered" and nothing beyond that. This question has been elaborately discussed by my learned colleagues who have examined in detail its pros and cons in their judgments and, therefore, I do not consider it necessary to traverse the same path. It would suffice to say that since reasons would form part of the advice, the Court would be precluded from calling for their disclosure but I agree that Article 74(2) is no bar to the production of all the material on which the ministerial advice was based. Of course the privilege available under the Evidence Act, Sections 123 and 124, would stand on a different footing and can be claimed dehors Article 74(2) of the Constitution.”

Further, Seven Judges of the Supreme Court in S.P. Gupta and Ors. v. President of India and Ors. : AIR 1982 SC 149 have examined and interpreted Article 74(2) of the Constitution of India. The Apex Court has lucidly explained in para 60 of the judgment as under:

“60....But the material on which the reasoning of the Council of Ministers is based and the advice is given cannot be said to form the part of advice. The point we are making may be illustrated by taking the analogy of a judgment given by a Court of Law. 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 he held to be outside the exclusionary rule enacted in Clause (2) of Article 74.”

Moreover, regarding the documents/material which do not form a part of the advice and the consequent disclosure of the same in the interest of justice, the Hon’ble Delhi High Court in Union of India vs. P.D. Khandelwal case [W.P. (C) 8396 of 2009, judgment dated 30.11.2009] had also held:

“34. Possibly the only class of documents which are granted immunity from disclosure is those mentioned under Article 74(2) of the Constitution. These are documents or information which are granted immunity from disclosure not because of their contents but because of the class to which they belong. Other documents and information which do not fall under Article 74(2) of the Constitution cannot be held back on the ground that they belong to a particular class which is granted absolute protection against disclosure. All other documents/information is not granted absolute or total immunity. Protection from disclosure is decided by balancing the two competing aspects of public interest i.e. when disclosure would cause injury or unwarranted invasion of privacy and on the other hand if non-disclosure would throttle the administration of justice or in this case, the public interest in disclosure of information. In such cases, the Court/CIC has to decide, which of the two public interests pre-dominates.”

The Commission in the case of Shri Subhash Chandra Agrawal Vs. Ministry of Home Affairs, New Delhi (Appeal No. CIC/SS/A/2012/000051, dated 12.04.2012) has held:

“15. The Commission is of the view that the ratio of its earlier decision in Mayilsamy K (supra) squarely applies to the facts of the present case. File notings and correspondence in relation to mercy petitions, as sought by the Appellant, reflect the material on the basis of which advice and recommendations are made by the MHA to the President of India and thus, fall under the category of information which is not barred by Article 74(2) of the Constitution of India. Information comprising of file notings and correspondences, as exchanged between MHA and President's Secretariat in relation to mercy petitions, has to be tested on the touchstone of Section 8 of the RTI Act and it has to be assessed whether the disclosure of such information is exempted under any of the clauses of Section 8 of the RTI Act.”

In view of the above, the Commission notes that the 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 Shri Pradeep Yeshwanth Kokde as sought by the appellant can be provided to the appellant. The Commission, however, observes that the file noting and the correspondence could contain the names of the officials recording the same, the disclosure of which would endanger the life or physical safety of these officials and hence its disclosure is exempted under Section 8(1)(g) of the RTI Act. In view of this, the Commission directs the respondent to provide the information sought for, after severing all the names and other references which could reveal the identities of the public officials concerned, to the appellant within a period of four weeks from the date of receipt of a copy of this order under intimation to the Commission.

2 20 Jul, 2017 Shri Blair Rodrigues Vs. CPIO, Goa Shipyard Limited, Vasco-De-Gama, Goa-403802

The complainant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), Goa Shipyard Limited, Goa seeking information on six points including, inter-alia, (i) copies of various Parliamentary questions received and (ii) copies of replies furnished to these Parliamentary questions.

The Commission observed that information sought has been incorrectly denied by invoking exemptions under Sections 8(1)(c), 8(1)(i) and 8(1)(j) of the RTI Act, which are not applicable to the facts of the present case since the information sought pertains to Parliamentary questions and their replies, and this cannot be said to be exempted under the RTI Act as once the questions are laid on the table of the Parliament, the same can be published and therefore, are available in public domain. The Commission also observed that information pertaining to grievance redressal, number of grievances received and copy of the promotion letter issued does not relate to personal information of a third party. Hence, the same has been incorrectly denied under Section 8(1)(j) of the RTI Act.
3 01 Apr, 2016 Ashok Khemka vs Prime Minister Office, New Delhi

The appellant filed RTI applications seeking copy of letter(s) written by Mrs. Sonia Gandhi, Chairperson of U.P.A. to Hon'ble Prime Minister pertaining to the suspension of Mrs. Durga Shakti Nagpal, an IAS Officer of U.P. Cadre, by the Uttar Pradesh Government.
The sought for information has been provided to the appellant by the respondent.

The Commission held that it has seen the file on the subject which bring out that consequent to Mrs. Sonia Gandhi's letter and other inputs the need to give protection to officers was discussed and a decision was taken to place the matter before Cabinet. The Commission also considered view that the crux of the penalty provisions is that the PIO should have obstructed the supply of the information with intent or should have acted consciously and deliberately in a manner so as to block the provision of the information. In the instant matter it cannot be said that the PIO acted out of any malice or with intent to deny the information sought by the appellant. It would not be appropriate to impose any penalty upon the respondent and award any compensation to the appellant.
4 07 Jan, 2015 S. N. Shukla Vs. Department of Justice, Government of India

The appellant sought information on copy of National Judicial Appointments Commission Bill as cleared by the Cabinet and copy of the note and order in the concerned file relating to the Cabinet Note about setting of the Commission.

The question was whether information regarding the cabinet decision be withheld even after a decision has been taken?

The Commission held that as soon as the final decision was taken with regard to the Bill, the matter was complete and over, and therefore, the noting should have been disclosed.

The Commission held that the contention of the appellant that once the Bill was introduced in Rajya Sabha the matter was complete, is reasonable, logical and legal as it is in tune with Delhi High Court’s interpretation in Writ Petition, UOI Vs. CIC.
5 14 Mar, 2012 Kishanlal Mittal Vs. CPIO & US, Ministry of Information and Broadcasting, Shastri Bhawan, New Delhi

Section 8(1)(i) – Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers
The Commission held that the PIO has denied the copies of the minutes of the GoM on the ground that these will be part of a Cabinet note for recommendations of GoM. The PIO states that the GoM is part of the council of Ministers and hence the minutes are exempt from disclosure as per the provision of section 8(1)(i) of the RTI Act. The Commission held that this appeared to be a reasonable claim and therefore it upholds the claim for the exemption under section 8(1)(i) of the RTI Act.
Total Case uploaded: 5