The Central Information Commission has (CIC) turned down a plea from one of the convicts in the Rajiv Gandhi assassination case, AG Perarivalan, seeking records carrying reasons for the rejection his clemency petition. Opposing the plea, Union home ministry cited a Delhi High Court order which restricted disclosure of communication between the then president KR Narayanan and the then prime minister AB Vajpayee, saying RTI Act cannot have overriding effect over the Constitution.
While rejecting the petition of Perarivalan, Information Commissioner Sushma Singh held, "in this case this case the reasons are primarily recorded in the advice tendered by the council of ministers which is protected by Article 74 (2) of the Constitution. As held by the Delhi HC, the provisions of the RTI Act is also bound by the Constitution." However, Singh allowed the disclosure of report of the multi-disciplinary monitoring agency to Perarivalan as was instructed by the CIC in a separate case filed by his lawyer Mayilsamy K.
According to a Supreme Court decision, advice tendered by the ministers to the president under the Artihcle 72 of the Constitution shall not be enquired into in any court. However, none of the cases cited by the home ministry relate to the issue of disclosure of material on the basis of which mercy petition of death row convicts were decided by the President and applicability of the RTI Act on such records.
In his RTI application, Perarivalan wanted to know the reasons of rejection of his mercy petition filed under Article 72. Appearing through video-conferencing for hearing, Perarivalan had argued that the Supreme Court order on Article 74 might prohibit only the courts from inquiring into the advice tendered by the ministers but it cannot be said by no stretch of imagination that the citizens and the person affected would not have right to know the reasons.
"Hence the reasons ought to be provided. Therefore, the information sought in the original application need to be allowed in full," he said. He said the rejection was made by the president and the same is intimated to the affected convict through the Union home ministry. Therefore, the reasons for rejection by the president is not prohibited from disclosure by citing any provisions of law except those under RTI Act as this is an umbrella law which governs the disclosure of information by government authorities.
He also reasoned that a duty is cast upon every public authority under section 4 (1)(d) of the RTI Act, 2005 to proactively communicate the reasons for any administrative or quasi-judicial decisions to the affected party. However, neither the Ministry of Home Affairs nor the president’s secretariat has provided with the reasons for rejection of the mercy petition. The convict had also submitted that the MHA had earlier furnished an incomplete compilation of documents pertaining to
mercy petition file to Mayilsamy K (advocate) on his behalf.
Seeking disclosure of MDMA records, he had said it is necessary for him to know whether any investigation in this regard has been completed at all and whether those facts were considered before deciding his mercy petition.
