The Prime Minister's Office had refused to disclose
the correspondence saying it is "privileged communication"
under the provisions of Article 74 (2) of the Constitution and
is not to be disclosed.
The Article says "advice tendered by Ministers to
President shall not be inquired into by any Court".
Applicant S C Agrawal had sought the copy of the
letter written in 2004 by the then President A P J Abdul Kalam
to the then Prime Minister Atal Bihari Vajpayee on Padma
Awards, action taken by the PMO and communication exchanged on
Failing to get a reply from the PMO, he had approached
the Central Information Commission with the plea seeking
disclosure of the information.
Ordering disclosure of the communication on Padma
Awards, the Commission ruled that the information which has
been withheld is "well outside any application of
Constitutional privilege under Article 74(2)".
It, however, exempted the disclosure of action taken
by the PMO on the letter from the President giving it "benefit
The PMO, in its submissions before the Commission, had
said the non-obstante clause contained in Section 22 of the
Right to Information Act stipulates only that the Act would
have overriding effect in respect of any other law.
"However, the Constitution is the basic law and such a
non-obstante clause does not override the Constitution," it
"Respondents (PMO) do not need to labour the point as
to whether in applying section 22 of the RTI Act, the RTI Act
can be deemed to override the Constitution itself. This is
obviously an absurd supposition," Chief Information
Commissioner Wajahat Habibullah said.
"In the present case we find that there is in fact no
relationship of the information sought with the class of
documents specifically defined as protected," Habibullah said.
He said discussion in the present case is not
whether information falling under Article 74(2) is privileged
but whether the Article is applicable at all in the present
case, which asks simply for the existence of a document, not a
ruling on it.
The PMO cited a legal opinion which said "it is
unthinkable that a Court or a Tribunal or a Commission could
mandate the President to produce as to what he wrote to the
Prime Minister in the discharge of his functions. This will
have the effect of reducing the President of India to a
position of witness before the enquiry Commission."
It said President could not be asked by a court or
tribunal or commission to disclose how it played "pervasive
and persuasive role in the process of chastening to make for
good government, keeping himself above politics."
The advice given by Department of Personnel and
Training (DOPT) for a separate case before the CIC said: "The
commission owes a constitutional duty to the President not to
require the production of the letters and ensure that by such
act of the Commission it does not drag the President into an
unnecessary political controversy which motivated elements may
try to precipitate or seek to sensationalise the matter for
such elements' own publicity or for other reasons."
New Delhi: The correspondence exchanged
between the Prime Minister and the President on Padma Awards
should be made public, the Central Information Commission has
held rejecting the PMO's claim that such information cannot be
given because of Constitutional provisions.
First Published: Thursday, April 29, 2010, 18:47