“There is a complete bar under Article 74(2) of the Constitution as to the advice tendered by the ministers to the President and, therefore, the CIC cannot look into the advice tendered by the President to the Prime Minster and consequently by the President to the Prime Minister or council of ministers,” said the Bench.
Justice Anil Kumar, upholding the government’s views, noted that the scope of the powers under the Right To Information Act cannot whittle down the provision in the Constitution, which restricts such disclosure.
“The CIC has held that the bar under Section 74(2) is not absolute and is subject to the RTI Act. The proposition of the CIC is not logical and cannot be sustained in the facts and circumstances. The RTI Act cannot have overriding effect over the Constitution of India nor can it amend, modify or abrogate the provisions of the Constitution in any manner. Even the CIC cannot equate himself with the Constitutional authorities, the Judges of the Supreme Court of India and all High Courts in the states,” the court added.
The judge noted that the information prohibited from disclosure by the Constitution cannot be procured by citing fundamental Right to speech and expression since the same right can be curtailed by “reasonable restrictions”.
Justice Kumar said that merely assuming that disclosure of the correspondence between the then President and the PM and vice-versa may not harm the nation at large, is based on the assumptions of the CIC and the RTI applicant, and hence, it should not be and cannot be accepted in the facts and circumstances of the case.
“Since the CIC is not entitled to peruse the correspondence between the President and the Prime Minister, as it is be barred under Article 74(2) of the Constitution of India, the application of the petitioner seeking such an information will also be not maintainable,” said the judge, concurring with the government counsels Additional Solicitor General A S Chadhiok and advocate Sumeet Pushkarna.
A full bench of the CIC on August 8, 2006 had called for the correspondences, sought by RTI applicant C Ramesh, to examine whether their disclosure would serve or harm the public interest, after which it would issue appropriate orders. The Centre had approached the HC against the CIC order claiming that such disclosures would affect the sovereignty and integrity of the country.