The Central Information Commission has held that the reasons for the rejection of his mercy petition cannot be disclosed to A.G. Perarivalan, death row convict in the Rajiv Gandhi assassination case, as they were part of the advice tendered by the Council of Ministers to the President.
Noting that the advice was protected from disclosure under Article 74(2) of the Constitution, the CIC said: “The Right to Information Act cannot take away the constitutional protection, and therefore the disclosure under the RTI Act has to be in consonance with Article[s] 72 and 74 (2)…”
However, the CIC directed the Home Ministry to provide Perarivalan with a copy of the investigation report of the Multi Disciplinary Monitoring Agency (MDMA). The MDMA, formed to inquire into the aspects identified by the Jain Commission which probed the larger conspiracy, is said to have investigated the making of the bomb that killed the former Prime Minister and others at Sriperumbudur near Chennai on May 21, 1991.
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If the document attracted any exemptions under the RTI Act, the Central Public Information Officer, Ministry of Home Affairs, was directed to pass a speaking order.
Perarivalan wanted to know the reasons for the President to reject his mercy petition. Stating that the death sentence awarded to him might be executed at any time, he submitted to the CIC through videoconferencing from Vellore Central Prison that the matter pertained to his life and liberty.
According to him, Article 74 would prohibit only courts from enquiring into the advice tendered by the Council of Ministers to the President, but it could not be said the person affected would not have the right to know the reasons. The reasons could not be prohibited from disclosure through any provision of law, except those under the RTI Act.
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Responding to the convict’s plea, the Ministry of Home Affairs submitted to the CIC that in the case of mercy petitions, file notings of officials, copies of petitions, information received from the State governments/the Union Territories and court judgments were the documents/information which led to the formation of the ministerial advice to the President. Hence, the documents were also covered by Article 74 (2).
In her June 26, 2013 order, Central Information Commissioner Sushma Singh said: “The appellant seeks to know the reasons for rejection of his mercy petition filed under Article 72… In this case, the reasons are primarily recorded in the advice tendered by the Council of Ministers which is protected by Article 74 (2)… As held by the Delhi High Court, the provisions of the RTI Act are also bound by the Constitution.”