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Public Interest Exclusive
Mercy petitions: Rashtrapati Bhavan rejects information under RTI

RTI activists Venkatesh Nayak and Vivek Velankar sought information on copies of all mercy petitions submitted to the president of India along with file notings and decisions. They were stonewalled under Article 74 (2) of the Constitution and not Section 8 of the RTI Act

When the president of India makes the vital decision on behalf of an entire nation of rejecting mercy petitions and hanging culprits like Ajmal Kasab and Afzal Guru, that too, in utter secrecy, doesn’t  every citizen have the right to know the reason behind these decisions?

 

When two Right to Information (RTI) activists, Delhi-based Venkatesh Nayak and Pune-based Vivek Velankar asked information regarding copies of mercy petitions, file notings and copies of the decisions under RTI, the President of India’s office shunted both the requests to the home ministry. The home ministry has ridiculously used the shelter of Article 74(2) of the Constitution to deny information under which courts are barred from inquiring into any advice given by the Council of Ministers to the president. Such a reply is not only the wrong reason as it does not come under RTI but it also means that ministers had sent the mercy petition to the president and the latter rejected it.

 

Elaborates Mr Nayak, “The reply from ministry of home affairs is in fact quite funny. If mercy petitions for the late Ajmal Kasab are covered by Article 74(2), then it implies that the Council of Ministers actually made a plea to the president for sparing Ajmal Kasab’s life. I say this because mercy petitions submitted by any other person do not qualify for the protection of Article 74(2). So if the Council of Ministers submitted a mercy petition for the late Ajmal Kasab, how and why did the president reject that advice?”

 

Adding the RTI dimension, Mr Velankar states, “actually, if any information is to be rejected under RTI, it should be under Section 8 or Section 9 of the RTI Act. The possible three sections under RTI which could have been used to deny me information are: are: ‘Exemption from disclosure of information There shall be no obligation to give any citizen- (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;  Sec.8 (1)(a) (c) information, the disclosure of which would cause a breach of privilege of Parliament or the state legislature s.8 (1)(c) (i) cabinet papers including records of deliberations of the Council of Ministers, secretaries and other officers: But the decisions of the 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 s.8 (1)(i).

 

“If we carefully look at any of these Sections, none of them are applicable in this particular case and in order to avoid giving me information, RTI Act’s rejection clauses have not been used for denial of Information. Instead, my information has been rejected using privileges under Section 74 (2) of the Constitution.”

 

Information specifically asked by Venkatesh Nayak:

 

Says Venkatesh Nayak, “I sought the following information from the MHA in January this year: 1) A clear photocopy of all mercy petitions submitted to the President of India relating to the late Ajmal Kasab;

2) A clear photocopy of all file notings relating to the disposal of the said mercy petitions; and

3) A clear photocopy of the decision of the President of India on the said mercy petitions.

 

“The Rashtrapati Bhavan also stonewalled a similar request. I sought the following information in January this year:

1)  A clear photocopy of all replies communicated till date, by the President’s Secretariat, to persons who have filed RTI applications seeking information about the decision of the President of India on the mercy petition(s) relating to the late Ajmal Kasab.”

 

Remarks Mr Nayak, “We are living in an interesting age. We are hanging people in secrecy just so that they may be prevented from approaching courts challenging the decisions of the president rejecting their mercy petitions. It started with Kasab and now Afzal Guru. Not only that, our public authorities would like to keep all information about the process of disposal of mercy petitions also secret. Apparently the voter/taxpayer must be denied the right to know all information about mercy petitions even after a decision is made and the convict executed. The State is becoming paranoid to the extreme in the battle against terror instead of treating citizens as equal partners.”

 

Information specifically asked by Vivek Velankar:

 

“Please provide me copies of the president’s decision and copies of central and state home ministry’s advise in cases where culprits were given death sentence by the Supreme Court for “rape and murder” and were condoned by the President of India and punishment reduced to life imprisonment during 1 January 2010 till 31 December 2012.”

 

States Mr Velankar, “the application was sent to the ministry of home affairs (MHA) by the President’s Office, stating that all the records are sent back to the MHA. The MHA after 25 days of receipt of application rejected the information saying that this falls in the privileges information under section 74 (2) of the Constitution. I am anyway going in appeal but this calls for public discussion on ethical, moral and legal grounds arising out of this stance taken by the government.  I feel this is utmost unethical and illegal too.”

 

What does Article 74 in The Constitution of India 1949 say?

 

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

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court

 

 On this, there is a Supreme Court judgement—SR Bommai Vs Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1;

“In regard to the contention, that Article 74(2) bars the inquiry into advice was tendered by Council of Ministers to the President, the Supreme Court at length considered the scope and effect of Article 74(2). Here it would be appropriate to mention that article 74(2) of the Constitution provides that the court cannot inquire as to any, and if so what, advice was tendered by Council of Ministers to the President.
 

“In this regard the Supreme Court held that although Article 74(2) bars judicial review so far as the advice given by the ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The material on the basis of which advice was tendered does not become part of the advice. The courts are justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the president could have acted on it. Hence when the courts undertake an inquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. This is not to say that the Union Government cannot raise the plea of privilege under Section 123 of the Evidence Act. As and when such privilege against disclosure is claimed, the courts will examine such claim within the parameters of the said section on its merits. But Article 74(2) as such is no bar to the power of judicial review regarding the material on the basis of which the proclamation is issued.”

 
(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)

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COMMENTS

Vinay Joshi

4 years ago

Hello Ms. Vinita,

MHA was right in rejecting RTI query. 74[2] prevails.

The bar is absolute, even u/s 18 such bar cannot be whittled down or diluted nor can the RTI applicants entitled to the correspondence [read material advise], as to obligation of MHA so as to reveal the said material advise. The plea can’t be sustained.

How many know exactly what is the ‘mercy petition’?

It’s pertinent to delve in 74[2], 72 as well.

Why CIC was not approached?

In the first place re ; RTI u/s 22, apex court has dismissed KIC [appellant] v/s Karnataka HC.
It has also imposed penalty on the appellant. [KIC- Karnataka Info.Commsnr.]

The Constitutional Head of India, The President, The President’s secretariat, is in no way under any obligation, as per the Constitution, to disclose any information including exercising provisions of Article 356.

Under which provisions can the ‘judiciary’ extract information of the proceedings of the Council of Ministers? Forget India, elsewhere in the world also.

THE RTI INFORMATION SOUGHT WAS ABSOLUTE PRIVILEGE OF THE PARLIAMENT?

CAN THEY SEEK IT? If so, under which provisions? Answer Mr.Velankar.

Mr. Velankar, please answer as you have stated RTI 8 [1] [i] is applicable & that your information is rejected under Article 74[2].

No compelling reason[s] for the executive, if the Govt. establishes it’s valid claim of denying the required info & the apex court has upheld it.

There is no evidence you have approached CIC, which itself would have quashed it.

Approach THE SC, if so desired!.File writ, let the court uphold impugning.

Is MHA, refusal amenable to judicial process?

Mr. Venkatesh Nayak, CONSTITUTIONAL aspects prevails WITHOUT BREACH!? Even if the advice rendered is malafide, as alleged, if! NO MATERIAL evidence can be produced, whatsoever, notwithstanding any provisions under any law in the context.

The President exercises power under Article 72. [Be it 356,161.]

SC has ruled that under Article 72, the power of the President is ‘unapproachable’ & ‘untouchable’ NOT ‘open for judicial review’, ‘unfettered & absolute’.

The very conferment of such constitutional power implies that it’s plenary, unfettered, NOT TO BE CONTROLLED BY ANY LEGISLATION.

In other words, the exercise of such powers, as advised by the Council of Ministers, as per the Directorate, Judicial, MHA, NO LAW can inquire into the prerogative exercised.

However in few instances, the Director [Judicial], MHA, has presented certain details to the apex courts in the past.

Capricious criteria are void exercise; no amount of legal casuistry can sustain it.
New democratic culture of an open society, no exception.

Article 74 inter alia 74[1] 74[2] as amended 42nd & 44th respectively. Justicable?

74[2] dichotomy not followed by the applicants – only stating S.R Bommai.The plea was rejected. Why has it not been stated? What material was given?

Has the apex court ever restored the dismissed Govt. in office? 356,161 as applicable!

If there is no material how advice can be given? So the material is part of advise as enjoying 74[2].

Sec 123, 124 of Evidence Act? As read with 162.

Papers [material] brought into submission for the purpose of preparing a submission to cabinet is classified documents.

Ms. Vinita, RTI applicant’s passion does not lend strength to interpret the provisions & not deem it fit as it ought to be.

Even when Justice Nanavati commission & Justice Shah commission had asked for certain information, summarily rejected, 74[2] read with 78 & 361. 8[1][a], 8[1][i], 8[1][e] or even 2 has no bearance.

There is an apparent & conspicuous distinction, though, between the advice & the material on which the advice is rendered BUT ARE NOT PRIVILEGED, substance & can’t be enquired into.

It is mandatory [even courts or the apex court] to prevent disclosures where 74[2] is concerned.
The courts are precluded from asking such information, obviously MHA right.

MHA, Judicial Directorate, has rightly prevented where 74[2] is applicable, as quasi judicial authority it was their duty to prevent such disclosures.

Hence enquiry of the disclosure barred by the Constitutional mandate contained in Article 74[2].

Anything expressed herein is confined to reply in the context, aforesaid.

Regards,









Dr Paresh Vaidya

4 years ago

The premise behind the article and the query is "doesn’t every citizen have the right to know the reason behind these decisions?" . Knowing that the subject is very sensitive, why a responsible citizen should like to fish in the troubled waters and embarass the government and the Rashtrapti? RTI Act is made for redressal of genuine grievances and not sterile inquisitiveness. Does the answer to the question on Kasab's hanging serve any national purpose? Or otherwise?

Such "over-use" of the Act should be avoided to retain its popularity and usefulness.

REPLY

Babubhai Vaghela

In Reply to Dr Paresh Vaidya 4 years ago

(1) Sins flourish in Dark. (2) Transparency can curb serious irregularities, corrupt and unethical practices even by the highest level Constitutional Authorities who are not Holy Cows. (3) RTI has confirmed, beyond doubt, and can confirm crimes against humanity committed. (4) What these RTI Activists have done is absolutely right. (5) More people should file RTIs if Govt Authorities not disclose them pro-actively.

Babubhai Vaghela

4 years ago

Right to Information Act 2005 says - 22
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. This, to me, shows supremacy of The Right to Information Act 2005 over even section 74 (2) of the Constitution.

BSE ties up with S&P Dow Jones for S&P branding

The Sensex will now be managed and operated by the new joint venture to be known as S&P BSE Sensex and effective Tuesday, all the BSE indices, including BSE 100 and BSE 200, will be co-branded ‘S&P’

Bombay Stock Exchange (BSE), India’s premier bourse, has inked a pact with S&P Dow Jones Indices to use the S&P brand for Sensex and other indices such as BSE 200 and BSE 100, a week after expiry of the global financial major’s pact with rival exchange NSE.

 

BSE benchmark index Sensex will now be managed and operated by the new joint venture to be known as S&P BSE Sensex and effective Tuesday, all the BSE indices, including BSE 100 and BSE 200, will be co-branded ‘S&P’.

 

Besides, these indices would join S&P Dow Jones Indices’ other iconic financial market indicators such as the S&P 500, the Dow Jones Industrial Average, the S&P/TSX 60, and the S&P/ASX 200.

 

“We expect our partnership with S&P Dow Jones Indices will help BSE raise the global acceptance of the Sensex and other index benchmarks, and help BSE achieve a leadership position in the index derivatives space,” BSE MD and CEO Ashish Chauhan told reporters here. “We have entered into a long-term strategic partnership with S&P Dow Jones Indices and will share revenues on 50:50 basis,” Mr Chauhan said.

 

Established in 1875, 137 years ago, BSE (formerly Bombay Stock Exchange) is Asia’s first stock exchange.

 

As of 31 December 2011, more than $1.5 trillion was directly indexed to S&P Dow Jones Indices’ family of stock market indices. “This partnership expands BSE and S&P Dow Jones Indices’ presence in India and in South Asia, while providing a springboard for our efforts in the ASEAN region with an important exchange partner that understands this critical segment of the market,” S&P Dow Jones Indices chief executive officer Alexander Matturri said.

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