"The Commission notes that the file noting and correspondence received or sent by the Ministry of Home Affairs pertaining to the appellant's mercy petition which is not a part of the Ministerial advice to the President as well as the file noting relating to the file of the mercy petition file by Pradeep Yeshwanth Kokde as sought by the appellant can be provided to the appellant," Bhargava said.
Chief Information Commissioner Sudhir Bhargava relied on several noted judgments of the Supreme Court and the Delhi High Court to reject the contentions of the ministry.
Mother of Pradeep Yeshwanth Kokde, who is on death row in Yerwada jail in Pune, had approached the Union Home Ministry seeking copies of file notings made in relation to the mercy petition filed by him under the Right to Information. The Central Information Commission has allowed disclosure of file notings on the mercy petition of a rape and murder convict, rejecting the government's contention that the records cannot be disclosed as these are privileged documents under Article 74(2) of the Constitution.
The Home Ministry denied the information citing Article 74(2) of the Constitution which protects from disclosure the advice tendered by the Council of Ministers to the President as it is privileged communication.
The applicant argued before the Commission, highest adjudicating body onI matters, that the Article protects only the advice tendered by the Council of Ministers and that the information sought by her does not pertain to the ministerial advice.
The ministry said that the recommendations along with all documents which lead to the formation of ministerial advice to the President of India are privileged under Article 74 (2) of the Constitution and cannot be disclosed under theI Act. These documents are an integral part of the government decision-making process and cannot be isolated from the ambit of “advice to the President”, the Home Ministry contended. The ministry cited a Delhi High Court order which had set aside an order of the Commission directing disclosure of information relating to the 2002 correspondence between the then President of India and the then Prime Minister relating to Gujarat riots.
Chief Information Commissioner Sudhir Bhargava relied on several noted judgments of the Supreme Court and the Delhi High Court to reject the contentions of the ministry. The Commission, however, asked the ministry to sever all the names and other references from the files which could reveal the identity of public officials involved in the decision-making process. Kokde has been convicted for hatching a criminal conspiracy, abducting, raping and killing a BPO employee working at Hinjewadi, Pune on November 1, 2007.