How can an emergency blunder be repaired by RTI?
Prof Madabhushi Sridhar Acharyulu
How the RTI gave the ‘details’ of Fakkruddin Ali Ahmad, former President, were very interesting, as explained by former Central Information Commissioner Shailesh Gandhi. Mr Subhash Chandra Agrawal, on 9 August 2010, filed a petition under RTI. Shailesh explained: The institutions of democracy had not become robust enough to withstand an assault, and citizens must know the reasons why and how democracy in India was nearly lost, the CIC said. He allowed an appeal, directed the Public Information Officer (PIO) and under-secretary at the President’s Secretariat to provide the complete information on the declaration of internal emergency by the then president, Fakhruddin Ali Ahmed.
Mr Gandhi said, “The Commission cannot pass any direction in this regard, as it does not come within the Commission’s powers as mandated under the RTI Act. Now that various functionaries like ministers, judges, and Information Commissioners have voluntarily put up details of their assets on websites, it is for the president to take a decision on this matter. The PIO’s reply was therefore correct.”
The PIO also stated that the issue of whether exchanges between the president of India and the prime minister of India can be revealed under the RTI Act was the subject matter of a petition before the Delhi High Court.
The Supreme Court of India in a nine-judge bench decision in SR Bommai & Ors Vs Union of India & Ors (AIR 1994 SC 1918) discussed the meaning and scope of Article 74 of the Constitution of India. Specifically, as regards Article 74(2) of the Constitution of India, the Supreme Court of India observed as follows:
“… Then comes Clause (2) of Article 74, which says that the question ‘whether any, and if so, what advice was tendered by the Ministers to the President shall not be enquired into in any Court.’ The idea behind Clause (2) is this: the Court is not to enquire—it is not concerned with—whether any advice was tendered by any Minister or Council of Ministers to the President, and if so, what was that advice. That is a matter between the President and his Council of Ministers. What advice was tendered, whether it was required to be reconsidered, what advice was tendered after reconsideration, if any, what was the opinion of the President, whether the advice was changed pursuant to further discussion, if any, and how the ultimate decision was arrived at, are all matters between the President and his Council of Ministers. They are beyond the ken of the Court. The Court is not to go into it. It is enough that there is an order/act of the President in appropriate form. It will take it as the order/act of the President. It is concerned only with the validity of the order and legality of the proceeding or action taken by the President in exercise of his functions and not with what happened in the inner Councils of the President and his Ministers. No one can challenge such a decision or action on the ground that it is not by the advice tendered by the Ministers or that it is based on no advice. If, in a given case, the President acts without, or contrary to, the advice tendered to him, it may be a case warranting his impeachment, but so far as the Court is concerned, it is the act of the President…” (Emphasis added)
The Supreme Court ruled that this obligation could not be evaded by seeking refuge under Article 74(2) of the Constitution of India. The Supreme Court, while interpreting the scope of Article 74(2) of the Constitution of India, clearly laid down in SR Bommai that Article 74(2) of the Constitution of India merely barred an enquiry into the question whether any, and if so, what advice was tendered by the council of ministers to the president. It did not bar the court from calling upon the council of ministers to disclose to the court the material upon which the President had formed the requisite satisfaction. The material on which advice was tendered did not become a part of the advice. Even if the material was looked into by, or shown to, the president, it did not take the character of advice.
“Given that the advice tendered by the council of ministers to the president enjoys the Constitutional protection of Article 74(2) and cannot be disclosed to the courts, a citizen under the RTI Act cannot seek information about such advice. However, the Supreme Court has held that the materials based on which such advice is tendered by the council of ministers or based on which the president forms the requisite satisfaction is not covered by Article 74(2) of the Constitution of India. Since Article 74(2) does not cover such material, it can be accessed under the RTI Act, subject only to the exemptions under the RTI Act.”
He wrote in the Second Appeal “complete and detailed information on all documents/ records/ deliberations/ correspondence/ file notings on declaration of internal emergency in the country by Fakhruddin Ali Ahmed, the then president is not barred from disclosure under Article 74 of the Constitution of India; only the advice received by the then president from the then prime minister is protected from disclosure under Article 74(2) of the Constitution of India (in line with the ruling in SR Bommai) and therefore cannot be provided to the appellant under the RTI Act, the CIC said. (based on https://ciconline.nic.in/cic_decisions/CIC_SM_A_2011_000287_SG_12889_M_58598.pdf and the report of Moneylife on the website. https://www.moneylife.in/article/rti-judgement-series-disclose-documents-related-with-declaration-of-emergency/33224.html 18 June 2013.
Being a former President, has committed a serious blunder. How can such a Constitutional wrong be repaired by a Right to Information petition? (The author is a former RTI Commissioner and also faculty member of prestigious NALSAR University)
