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 ( 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.
(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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