Dear All,
We are living in an interesting age. In India one of the interesting elements of the present age is the thirst for blood. We are hanging people in secrecy just so that they may prevented from approaching courts challenging the decisions of the Hon’ble 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 Ministry of Home Affairs (MHA) has stonewalled my request for information about mercy petitions received, pleading for the Late Ajmal Kasab’s life to be spared. I sought the following information from MHA in January this year:
1) A clear photocopy of all mercy petitions submitted to the Hon’ble 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 Hon’ble President of India on the said mercy petitions.
The MHA has invoked Article 74(2) to reject my request (first attachment). Under Article 74(2) of the Constitution, courts are barred from inquiring into any advice given by the Council of Ministers to the President. Therefore MHA’s reply 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 Hon’ble President reject that advice?
The Rashtrapati Bhawan 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 Hon’ble President of India on the mercy petition(s) relating to the Late Ajmal Kasab.
The PIO of Rashtrapati Bhawan clearly outclassed the MHA’s PIO in replying to my request (second attachment). The PIO stated that records of RTI applications received in the President’s Secretariat were not held subject-wise, so he would not be able to supply the information unless I quoted the name and address of the RTI applicant and the date of receipt of the application in the President’s Secretariat. Now I am wondering how to get hold of the information that the PIO wants me to supply him first. That was the sole purpose of my RTI application in the first place. Had I known those details I would have obtained the replies directly from the applicants. Truly PIOs of MHA have a lot to learn from Rashtrapati Bhawan about humouring an RTI applicant.
Regardless of the silliness of the PIOs’ replies, in the eighth year of implementation of the RTI Act, my recent RTI experience is huge cause for worry for reasons explained below:
1) The State is becoming paranoid to the extreme in the battle against terror instead of treating citizens as equal partners. Combatting terrorism is not merely the State’s concern, it is a concern for citizens as well. People may continue to exist even if the State were to disappear. But the State will no longer exist the moment people disappear. The State exists for the sake of the people and not vice versa. The rule of law cannot be discarded in the name of fighting terror. Where convicts are executed without giving them all opportunities for seeking legal redress, arbitrariness rules, not law.
2) Article 74(2) is being used as a new excuse to deny the citizen’s fundamental right to know. The Delhi High Court has held in a handful of cases that the Constitution being a higher law overrides an ordinary statute like the Right to Information Act (I will send a critical analysis of these decisions later). The point that the Hon’ble Court misses is that the RTI Act is a statute that gives effect to a fundamental right unlike other legislation. It is not just another statute enacted on a subject in one of the three lists of the Seventh Schedule of the Constitution. A statute laying down the procedures and systems for giving effect to a fundamental right is as important as the fundamental right itself. It is respectfully submitted that one provision of the Constitution cannot be used as an excuse to extinguish a fundamental right guaranteed by the same Constitution. State privilege cannot be prevail over a fundamental right on the mere excuse that the Constitution is a higher law. PIOs are more empowered than before to deny access to information because of such reasoning. They may not take into account all other judgements that expand the right to information but they are quick to use materials that curtail people’s right to know.
3) The Delhi High Court in all its wisdom has created a new exemption to disclosure in the name of upholding the Constitution. The RTI Act to the contrary states that a request for information may be denied only for reasons specified in Sections 8 and 9 of that law. With the greatest respect to the wisdom of the Court it must be said it does not have the power to create new exemptions contrary to Parliament’s intent. Judicial action must protect, buttress, strengthen, and promote fundamental rights including people’s right to know.
There is an old saying in Kannada: How can a fence devour the very crops it is meant to protect? State privilege must not be permitted to trounce fundamental rights in so casual a manner.
Kindly circulate this email as widely as possible.
Thanking you,
Yours sincerely,
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, First Floor, Sarvodaya Enclave
New Delhi- 110 017, INDIA
Tel: +91-11-43180215/ 43180201
Fax: +91-11-26864688
Skype: venkatesh.nayak@skype.com
Alternate Email: nayak.venkatesh@gmail.com
Website: www.humanrightsinitiative.org