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    A mercy petition kicks off after the judicial pronouncement and involves a very serious application of mind by the Executive and the President, who does have institutional discretion,”………….“But if the Executive and the President come to a certain determination, no one has the right to play political football with that.” Mr. Manish Tewari

    [See the full post at: List of the members of civil society who signed Afzal Guru’s mercy petition]


    Sh. Vatsa Raj vs M/O Home Affairs

    Central Information Commission

    Date: 20 January, 2010

    Central Information Commission
    Room No. 5, Club Building, Near Post Office
    Old J.N.U. Campus, New Delhi – 110067
    Tel No: 26161997

    Case No. CIC/WB/A/2009/000314

    Name of Appellant : Sh. Vatsa Raj

    Name of Respondent : M/o Home Affairs


    Sh. Vatsa Raj, the Appellant filed an application dated 18.09.2008, requesting under the RTI Act, 2005, requesting the following information:-

    “(i). This is a request for information under the RTI Act, 2005 in respect of Mercy Petitions under Article 72 of the Constitution received by the Hon’ble President of India and referred to by the President to the Govt. (MHA).

    (ii). Kindly provide the following information in respect of the Petitions of Mohd. Afzal, Delhi and Gurmeet Singh, Uttar Pradesh mentioned in your letter No. F. 16.02.2007-JUDL. CELL dated 21st March 2007 as well as any other Mercy Petitions referred to by the Hon’ble President in respect of which recommendations have not yet been sent by the ministry to the Hon’ble President as on 15.09.2008.

    (iii). Summary of File Movement within the Ministry for each of the Petitions showing:

    Officer and Section to whom sent, Date of sending, Date of returning.

    (iv). Dates of reference to NCT and other concerned State Govt. and dates of receipt of final recommendation from them

    (v). Officer/Section in charge of the matter in the Ministry of Home Affairs

    (vi). Copies of Ministry File Notings in respect of each of the references pending with the ministry.

    The CPIO / Director (Judicial), MHA replied to the Appellant as follows:-

    “With reference to his application dated 18/22.09.2008 under the right to information Act, 2005, received by Judicial Division on 26.09.2008, Sh. V. Raj is hereby informed that there were only two mercy petitions, of Sh. Bandu Baburao Tidake, Karnataka and Mohb. Afzal, Delhi, in respect of which recommendations had not been forwarded to the President as on 15.09.2008. Subsequently, the mercy petition of Sh. Tidake was also forwarded to the President Secretariat on 23.10.2008. At present only mercy petition of Mohd. Afzal is under examination of this Ministry in consultation with the Government of NCT of Delhi, etc. The mercy petitions filed before the President of India under Article 72 of the Constitution of India on behalf of condemned prisoners are processed in the Judicial Division of the ministry for submission to the President. The information other than above, including file notings/file movement register, is withheld from disclosure under Section 81(a) & (g) of the Right to Information Act, 2005.

    2. The Appellate Authority in respect of this decision is Sh. Shashi Bhushan, Joint Secretary (Judicial-II), Ministry of Home Affairs, Jailsalmer House, Man Singh Road, New Delhi (Tele: 23385020)”

    Not satisfied with reply of the CPIO, the Appellant filed a first appeal before the First Appellate Authority / Jt. Secretary (Judicial) MHA, dated 23.12.2008 who, vide his letter dated 23.12.2008 decided as follows:- “We regret the delay in furnishing the reply. The information pertaining to point nos. 3,4,5 & 6 raised in your application dated 22nd September, 2008 has been withheld under Section 8(1)(a) & (g) of the RTI Act as the same pertains to the case of Mohd. Afzal (only pending case in the Ministry for which the recommendation has to be forwarded to the President’s Sectt.) which involves security and safety interest of the country. Further, recommendation of the Govt. on the mercy petition of a condemned prisoner is in the nature of advice by the Council of ministers to the President which cannot be inquired into in any court of law under Article 74(2) of the Constitution of India.”

    Thereafter the Appellant has filed a second appeal before the Commission, submitting therein that he has been wrongly denied information on point No. 3, 4, 5 & 6 of his RTI application, by quoting Section 8(1)(a) & (g) of the RTI Act, 2005.

    2. The matter was heard on 20.01.2010

    3. The Appellant was not present for the hearing.

    4. Sh. S. C. Srivastva, JT. Sec. (Judicial) and Sh. R. S. Sharma, Director, represented the Respondent.

    During the hearing the Respondent submitted that divulging information regarding summary of file movement, names of the Officers / Sections incharge of the matter and copies of file notings may cause threat to the security and safety of persons dealing with sensitive matters. They also submitted that any advise tendered by the Hon’ble Minister to the President would attract the provisions of Article 74(2) of the Constitution.

    Decision After hearing the Respondent and on perusal of the documents the Commission finds merit in the contention of the Respondent that the provisions of Section 8(1) (g) of the RTI Act, 2005 are attracted regarding the information on file noting and identity of persons dealing with this matter in the Home Ministry.

    The replies of the Respondent clearly showed that of the two petitions namely that of Mohd. Afzal, Delhi and the other of Gurmeet Singh of U.P. mentioned in the RTI application, only the petition of Mohd. Afzal remains pending.

    At point No. 4 of the RTI application the dates of references to Govt. of NCT, Delhi and dates of reply of final recommendation from them has been required. The Respondents are directed to inform the Appellant about the date of reference made to Govt. of NCT, Delhi, in the case of Mohd. Afzal Guru, since denial of this information does not attract any of the provisions of the RTI Act. As far the date of reply from the Govt. of NCT, Delhi, the Respondent have clarified that no reply has as yet been received from the Govt. of NCT, Delhi.

    The Respondent submitted during the hearing that no recommendation has yet to be made on the matter of Mohd. Afzal. Hence, reference to Article 74(2) of the Constitution is not relevant in the present case.

    With these directions / observations the matter is disposed off accordingly.

    (Sushma Singh)

    Information Commissioner


    Copy to:

    1. Sh. Vatsa Raj, 1101, Yogi Rsidency, Yoginagar, Borivali (W), Mumbai

    2. Sh. Mohinder Singh, Director (Judicial) & CPIO, Govt. of India, M/o Home Affairs Mansingh Road, New Delhi-110001

    3. Sh. Shashi Bhushan, Jt. Secretary, Govt. of India, M/o Home Affairs Mansingh Road, New Delhi-110001

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