The central information commission (CIC) has asked the Union ministry of home affairs (MHA) to provide the mother of a death row convict lodged at Pune’s Yerawada Central Jail, file notings, relating to his mercy petition, but by making opaque the names of officials who have noted on those files, to guard their personal safety.
Ujwala Kokde had filed an RTI application with the central public information officer (CPIO), judicial division, in the MHA seeking information pertaining to the mercy petition of her son, Pradeep Kokde, who is facing death sentence. The information she sought comprised (i) copy of any memo/note/comment made in relation to the mercy petition filed by Pradeep Kokde, (ii) copy of the entire mercy petition file of Pradeep Kokde, and (iii) copy of the file notings pertaining to the file of the mercy petition filed by Pradeep Kokde.
The CPIO denied information on the ground under Article 74(2) of Constitution of India, which states 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.”
She filed her first appeal with the first appellate authority (FAA) of the MHA but did not receive any response and so filed a second appeal with the CIC.
At the CIC hearing on 11 June 2019, Ms Kokde was represented by Ragni Ahuja through video conferencing. He stated that the CPIO denied Ms Kokde information under Article 74 (2) of the Constitution of India but this reason is invalid as the information she has sought does not pertain to any ministerial advice, which is protected under Article 74(2) of the Constitution.
Mr Ahuja further stated that the material including file noting and correspondence on which the advice is based is not privileged and hence, not covered under the Article 74 (2).
Quoting two cases, he stated that the Supreme Court, a seven judge bench in one case and a nine judge bench in another, had not only allowed notings made by high constitutional functionaries but in one of the cases, directed CIC to provide complete information requisitioned under RTI.
The CPIO, at the hearing, insisted that the ministerial advice, opinion and recommendation is made to the President on the basis of the documents, i.e. file noting, petition and letters and, hence, the same are privileged under Article 74 (2) of the Constitution of India and cannot be disclosed under the RTI Act.
Sudhir Bhargava, the chief information commissioner (CIC), who was hearing the second appeal, passed an order stating that the MHA should provide all the file notings asked for by Ms Kokde but by scratching off all the names of the officials who have noted in the files, for their personal safety.
His order of 12 June 2019, states: “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 (Ms Kokde) 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…”
It may be noted that Ms Kokde filed her RTI application on 13 July 2017 with the CPIO in the MHA; her first appeal on 22 August 2017 with the FAA, MHA and her second appeal on 21 December 2017 with the CIC at Delhi. However, the second appeal’s hearing, that is the CIC hearing came up one year, 11 months later, that is on 11 June 2019!
One of the court orders that CIC Bhargava cited to come to his decision, revolves around a court judgment. It mulls over which of the public interest is larger – whether the disclosure will cause unwarranted invasion of privacy or needs to be disclosed for larger public interest:
“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.”
(Vinita Deshmukh is 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”