*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.1569 of 2011 %23-03-2011 # Sri M. Narayan Reddy ..petitioner And $ The Govt. of India, Ministry of Home Affairs, Rep. by Home Secretary, New Delhi & another ..Respondents !Counsel for the petitioner : Sri G. Mohan Rao ^Counsel for respondent No.1 . : Sri Ravindran & Sri Vivek Tanka, Addl. Solicitors General Sri K. Vivek Reddy, for R-2 < Gist: > Head Note: Citations: 1) (1976) 2 SCC 521 2) AIR 2008 SC 1339 3) (2007) 9 SCC 461 4) (1978) 1 SCR 375 5) (1998) 8 SCC 1 6) (2004) 2 SCC 476 7) (1997) 4 SCC 306 8) (Beatson, Matthews and Elliott’s Administrative Law Text and Materials, at page 683) 9) AIR 1973 SC 106 10) K.K. Mathew, Democracy, Equality and Freedom, Ed. Upendra Baxi, (1978), p.106 11) T.K. Tope’s Constitutional Law of India by Sujata V. Manohar Third Edition at pages 165 & 166 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.1569 of 2011 JUDGMENT: The petitioner is a Practicing Advocate, a former Member of Parliament and A.P. Legislative Assembly. He has also held positions in the Zilla Parishad, Nizamabad District, and was associated with the Agro Industries in different capacities. He filed this writ petition with a prayer to declare that the action of the Union of India, Ministry of Home Affairs (for short ‘the respondent’), in withholding a note on Chapter-VIII (Law and Order and Internal Security Dimensions) (for short ‘the note’) of the report of the Committee for Consultation on the situation in Andhra Pradesh, headed by Sri Justice Srikrishna (hereinafter referred to as ‘the Committee’); as illegal, arbitrary, unreasonable and unconstitutional. Consequential direction to the respondent to furnish the same to him, or to place it on the website of the respondent, is also sought. 2. The averments, in the affidavit filed in support of the writ petition, in brief, are that, the State of Andhra Pradesh was formed by merging the Telangana Region of the erstwhile Hyderabad State with Andhra State, in 1956, and feeling that the conditions and safeguards are not honoured, the people of Telangana brought a movement in the year 1969, demanding formation of a separate State. It is alleged that 369 people lost their lives in the agitation, and in 1972, the people from other part of the State have also organized a movement for formation of Andhra State. The petitioner had narrated the subsequent developments, leading to the inclusion of the promise to form Telangana State in the election manifestoes of certain political parties, on the eve of the General Elections held in the year 2004 and in the common minimum programme of the United Progressive Alliance. 3. In the last quarter of the year 2009, there was a serious agitation, demanding formation of separate State of Telangana, by dividing the State of Andhra Pradesh. Taking note of the gravity of the situation and seriousness of the matter, the Government of India arranged for an All Party Meeting, on 07-12-2009, at Hyderabad, wherein, unanimous opinion is said to have been expressed in favour of formation of Telangana State, and that, on the next day, it was reiterated in the Assembly. 4. On 09-12-2009, the Union Home Minister made a statement, announcing the decision of the Government, to initiate steps for formation of Telangana State. The petitioner contends that this statement was reiterated on the floor of the Parliament on 10-12-2009. 5. There was protest from the Andhra and Rayalaseema regions of the State, against the announcement made by the Union of India, and almost a crisis-like situation emerged. Unable to reconcile the conflicting claims, instantly, the respondent announced constitution of a Committee, to be headed by a Former Judge of the Supreme Court of India, to examine various aspects pertaining to the issue. It was in this context, that the respondent issued an order dated 03-02- 2010, forming a Committee, comprising of Sri Justice B.N. Srikrishna, a Retired Judge, Supreme Court of India, as Chairman; Prof. (Dr.) Ranbir Singh, Vice-Chancellor, National Law University, Delhi; Dr. Abusalem Shariff, Senior Research Fellow, International Food Policy Research Institute, Delhi; Dr. (Ms.) Ravinder Kaur, Professor, Department of Humanities and Social Sciences, IIT, Delhi, as Members, and Sri Vinod K. Duggal, IAS (Retd.,) former Home Secretary, as Member Secretary. On 12-02-2010, Terms of Reference were announced. The Committee has undertaken wide-ranging consultations throughout the State. It ultimately submitted a report, on 30-12-2010. The report comprised of Nine Chapters, spread over 425 pages. The same was put on a website, a week thereafter. However, the note, dealing with the Law and Order and Internal Security Dimensions, representing Chapter VIII; was handed over by the Committee, to the respondent, in a sealed cover, and it was not made public. 6. The petitioner submits that the note dealt with important aspects, and that even according to the Committee, it was taken into account in suggesting “Way Forward” in the IX Chapter. The petitioner contends that the very purpose of making available the report is, to enable the various individuals, or stakeholders to put forward their contentions, in the light of the observations or findings of the Committee, and if a vital part of it is withheld, the very purpose would be defeated. 7. The petitioner contends that he made efforts to obtain copy of the note by submitting applications to the Authorities of the Home Ministry, and when there was no response, he had approached this Court by filing a Writ Petition, under Article 226 of the Constitution of India. He submits that, at a time when the right to information is being given impetus, such as by enacting the Right to Information Act, 2005 (for short ‘the RTI Act’), there was no justification for the respondent in withholding the note. He submits that his fundamental rights, guaranteed under Articles 14, 19 (1)(a) and 21 of the Constitution of India are infringed by the respondent. 8. In view of the importance and sensitivity involved in the matter, this Court requested the learned Attorney General to assist the Court, at the threshold. The request was readily acceded to, and the learned Attorney General submitted that the Committee has no statutory basis, and the exercise undertaken by it cannot be subject- matter of any judicial review. He further submitted that it is only when a decision is taken by the respondent, adversely affecting the petitioner, or for that matter, any person, that they can pursue the remedies and not vis-à-vis the steps, in the preparation of a report, which itself is purely recommendatory in nature. 9. Learned Attorney General submitted that it is only a Consultative Committee, and not a Commission, constituted under the Commissions of Inquiry Act, 1952 (for short ‘the 1952 Act’). His further contention was that the function assigned to the Committee is only to gather public opinion and to make suggestions, and that to arrive at a decision on the issue, the political process has to be started. He has also pleaded that the ultimate decision would involve legislative process, and that an aggrieved party has to ventilate its grievance only before a political forum, and that the remedy is not in a Court of Law. He submitted that the respondent has taken a conscious and well- informed decision, not to make the note public, and that the petitioner has no right to insist on the same, being furnished to him. He sought time to make further submissions. 10. On the next day of hearing, the learned Additional Solicitor General appeared, and submitted that the Court may go through the note, which was supplied in a sealed cover, and if it feels that the note contains sensitive information and cannot be made public, no further steps would become necessary in the writ petition; and on the other hand, if the Court feels that the note must be made public, time may be granted to the respondent to file counter-affidavit. After going through the report, this Court expressed its prima facie view, that the note has to be made public, and it would help the stakeholders to formulate their viewpoints. The matter was adjourned to enable the respondent to file counter-affidavit. 11. The respondent filed a counter-affidavit, opposing the writ petition. It is stated that the petitioner has no fundamental right to insist on furnishing of an important and sensitive document. According to the respondent, the note deals with the security and law and order aspects, after consultation with the various security agencies, and the same cannot be shared with public. It is also the case of the respondent that the Committee did not undertake any administrative or quasi judicial exercise, and that the report submitted by it, is only recommendatory in nature, and that the decision at appropriate level on the real issue would be taken by the concerned authorities, duly taking into account, all the relevant facts. Privilege under Sections 123 and 124 of the Indian Evidence Act claimed 12. The writ petition was taken up for hearing after the pleadings are complete. The learned Additional Solicitor General (ASG) commenced the arguments by raising a preliminary objection, as to the maintainability of the writ petition. He submits that for all practical purposes, the fundamental right guaranteed under Article 19(1) (a) was codified, in the form of the RTI Act, and a perfect machinery is provided, for enforcement thereof. By referring to the various provisions of the RTI Act, he submits that an independent and foolproof machinery is provided for, under it, and that the petitioner ought to have availed the remedy under it. Learned ASG submits that the Public Information Officer (PIO), of any department or establishment is conferred with the power not only to procure and furnish information, but also to overrule an objection, that may be raised by a department. He submits that it is only when the petitioner fails in his effort to get copy of the note, by availing the remedy under the RTI Act, duly exhausting the rights of appeal, etc., that he could have approached this Court. 13. He has also apprised this Court of the limitations, in the context of issuance of Writ of Mandamus, and submits that there did not exist any statutory duty on the part of the respondent to furnish note, much less, the failure to discharge it. On this basis, he submits that there does not exist any occasion for this Court, to issue a Writ of Mandamus. He places reliance upon various precedents. 14. This Court kept in view, the objection, raised by the learned ASG, and requested the learned counsel for the parties to address arguments on merits. 15. Sri Gandra Mohan Rao, learned counsel for the petitioner submits that the fundamental right claimed by the petitioner is wider in its scope, than the one, contained in the RTI Act, and in that view of the matter, the preliminary objection is not tenable. He submits that the Constituent Assembly recognized the importance of the Right to Freedom of Speech and Expression, and while framing the restrictions, under Article 19 (2), they did not incorporate the grounds of security of State, or public interest, as justifications for restricting the scope of the right. He submits that the contents of the note would have direct bearing upon the decision making process, and withholding of the same is arbitrary and violative of Article 14 of the Constitution of India. He contends that, in addition to being violative of rights under Article 19(1) (a) and Article 14 of the Constitution, the action of the respondent would also amount to infraction of Article 21 thereof. 16. Learned counsel submits that the remedy that is provided for under the RTI Act is, at the most an alternative, for enforcing a legal right, and not a substitute for the jurisdiction of this Court, to issue a Writ of Mandamus, to enforce fundamental rights. He contends that the Union Home Minister circulated a note, suggesting the parties to go through the report, in its entirety, form their opinion, on the basis of the contents, and be prepared, either to convince, or to be convinced, and in that context, if a vital part of it is withheld, the whole exercise becomes redundant. 17. Sri Mohan Rao, further submits that the security aspects, or study thereof, were never part of reference, made to the Committee, nor did the Committee express the view, that it would not be in the public interest to disclose the contents of the note. He has drawn the attention of this Court to certain aspects of methodology adopted by the Committee and urged that nowhere in its marathon exercise, the Committee gave an indication that any step taken by it would be, either confidential or secret. He submits that the Committee was constituted with the sole objective of gathering public opinion, and maintenance of secrecy on any aspect would be, in fact, contradiction in terms. He places reliance upon number of precedents, in support of his contention. 18. Sri K. Vivek Reddy, learned counsel for the 2nd respondent, who is supporting the writ petitioner, has supplemented the arguments, addressed by the learned counsel for the petitioner. He argued that the writ petition is filed challenging the decision, to keep a part of the report, secret, and in that view of the matter, the remedy is not within the scope of the PIO, or for that matter, the RTI Act. Learned counsel submits that the right of a citizen to participate in decision making is a concomitant part of good governance, and withholding of any material, that is utilized in the process from the public, would certainly make a dent into the legality and quality of the decision. He further submits that when the effort of the Government is to invite comments from the public, in general, and stakeholders in particular, it would become fruitful only when the entire report of the Committee, together with its recommendations, is made available. He too has relied upon certain decided cases. 19. In reply, the learned ASG submits that no citizen can claim furnishing of a document or a report, or a part of it as a fundamental right. He submits that though Article 19(2) of the Constitution does not make any reference to public interest or public policy, Courts have recognized the same as one of the grounds to place restrictions on the fundamental right, under Article 19(1) (a) of the Constitution of India. He submits that the issue pertaining to the formation of a separate State of Telangana is purely in the domain of political, or legislative exercises, and no part of it can be brought under the purview of judicial review by the High Court. He submits that the Committee itself felt that a part of report, dealing with the security and law and order aspects needs to be kept secret and that it is purely for the guidance of the Government to take certain precautionary measures, and for the purpose of arriving at a definite conclusions on the issue. By referring to various judgments, learned ASG submits that, in matters of this nature, the Court would be reluctant to interfere. 20. Before discussing the matter on merits, the preliminary objection raised by the learned ASG needs to be dealt with. The gist of his argument is that, the relief claimed by the petitioner is within the scope and ambit of the RTI Act, and unless the remedies thereunder are exhausted, the writ petition cannot be maintained. In a way, it is more a plea of non-exhaustion of alternative remedy, than the one, akin to preliminary objection. By now, it is well-known that, preliminary objection is raised mostly in cases where a particular forum is reminded or informed of lack of jurisdiction in it, whether by operation of any specific provision of law, or the conferment thereof, in another equally efficacious forum or agency. For example, Section 15 of the Administrative Tribunal Act specifically excludes the jurisdiction of any Court of Law, including the High Court, as regards the matters pertaining to the service conditions of Civil Servants and confers the same on Administrative Tribunals. If a writ petition is filed in the High Court on such matters, either inadvertently, or by placing an interpretation upon the provision, that suits the petitioner, and if the High Court was, to certain extent convinced to entertain the writ petition, the opposite party or the State, can certainly remind it of the purport of Section 15. Such is not the case here. 21. The Freedom of Speech and Expression is guaranteed and incorporated in Article 19(1)(a) of the Constitution. The provision reads: “Article 19: Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (a) to freedom of speech and expression.” 22. Though the provision is brief in its content, various facets thereof have been developed and evolved over the period through process of interpretation. The importance attached to this provision is reflected from the fact that public interest, which is treated as a ground for placing restrictions on the different types of freedoms, guaranteed under Article 19 is not made applicable to it. Of all the freedoms guaranteed under Article 19, the one, pertaining to speech and expression is treated as more basic for human existence, survival and excellence. Without it, human life cannot be imagined at all. This case does not provide an occasion to delve deep into the scope and ambit of the said freedom. 23. It is not uncommon that Parliament enacts laws to enforce certain facets of fundamental rights, apart from other laws. While in some cases, the enactments are exclusively for that purpose, in other cases, the gist of the various fundamental rights is reflected in parts of the enactments. The RTI Act can be said to be a legislative device, to help the citizens to secure information, which they intend to. A detailed mechanism is provided. Appointment of a Public Information Officer in every office is made obligatory. He in turn is conferred with the power to process the application submitted for information, and to furnish it. The RTI Act also recognizes under Section 8, that certain categories of information, mentioned therein need not be furnished to an applicant. 24. Notwithstanding the comprehensive nature of the Act, it cannot be said to be repository of the fundamental right under Article 19(1)(a). The right to freedom of speech and expression is wider in its scope and it is not susceptible to any precise definition. Further, information is something which a person intends to get from others, whereas speech and expression is a phenomenon through which he conveys his ideas to others. Viewed from this angle, right to information is only a step that helps an individual to get himself well- informed, so that he can exercise right to freedom of speech and expression, effectively. 25. There are certain rights and freedoms which are fundamental to human existence. It is rather a coincidence, if not compulsion, that the States, irrespective of their form, codify such rights. Howsoever fundamental the law that codifies such rights may be, it cannot be treated as the sole repository, at least in case of certain rights and freedoms. For instance, right to life and liberty is not something which a human being acquires under an enacted provision, of a parent legislation, like the Constitution, or an ordinary legislation, like an Act. Even when the society was in a disorganized form, persons enjoyed such rights. 26. An effort made to portray that, Article 21 of the Constitution of India is the sole repository of the right to live for an Indian citizen was, no doubt, approved by the Hon’ble Supreme Court in A.D.M., Jabalpur v. Shiv Kant Shukla[1], by a majority of 4:1. The fact however remains that the learned Attorney General, who advanced such argument had said to Justice Khanna, the only dissenting judge, “May I offer my congratulations for your great judgement”. 27. One of the learned judges from the majority said few days later, in public, “I regret that I did not have the courage to lay down my office and tell the people, Well, this is the law.” (See Working a Democratic Constitution – The Indian Experience by Granville Austin at page 342). 28. It is interesting to note the observation of Chief Justice M.H. Beg, another from the majority, about the conclusion in that case. “…The common statement of a conclusion at the end of the judgments in the Habeas Corpus case, based on the majority view but signed by all the Judges, including Khanna, J., was perhaps misleading as it gave the impression that no petition at all would lie under either Article 226 or 32 to assert the right of personal liberty because the locus standi of the citizen was suspended… I would have certainly made it clear that the statement of a conclusion reached by the majority did not accurately set out at least my conclusion which is found at the end of my judgment…” (See (1978) 2 SCC para 16 at p.485) 29. The Hon’ble Supreme Court recently observed that the judgment in A.D.M., Jabalpur v. Shiv Kant Shukla (1 supra) did not lay the law correctly. The attempt of this Court is only to demonstrate that any effort made to present an enactment as the sole repository of a fundamental right guaranteed under the Constitution, or to restrict the scope of fundamental rights, that reflect basic tenets of human life cannot be encouraged. When a provision of the Constitution cannot be treated as the sole repository of an important right that is essential for human existence, an enactment is incapable of being the complete code of such right. 30. The word “information” is defined under Section 2(5) of the RTI Act. It refers to material of different kinds, irrespective of their form, such as documents, memos, e-mails, opinions, advices, reports, etc. Here a basic difference needs to be kept in mind. ‘Information’, as defined under the RTI Act connotes the one, which is in the possession, custody or knowledge of the person from whom it is sought, and correspondingly, the seeker thereof was not aware of it. In cases where public hearings are undertaken and the agency or committee is not assigned any secret job, what it compiles is nothing, but the information, evidence and material, received from the public. Therefore, if an application is made for making available the report or a note, prepared on the basis of such hearings, what is requested is not an information-simplicitor, as defined under that Act. On the other hand, the attempt of the individual, seeking the report or a note is an effort to satisfy himself, whether the material presented by him or other stakeholders was properly reflected. In this sense, the matter cannot be said to be strictly governed by the provisions of the RTI Act. Therefore, the preliminary objection raised by the learned ASG is not sustained. 31. Another contention advanced by the learned ASG is that a Writ of Mandamus would lie only when a duty is cast upon an authority by a provision of law and such authority has failed to discharge that duty. He contends that basically the committee is not an authority amenable to judicial review, much less, any duty was cast upon it to make the note public. As a further extension of this argument, he submits that no duty cast upon the respondent to reveal the contents of the note and in that view of the matter, the question of its failure to discharge the duty does not arise. He places reliance upon the judgment of the Supreme Court in ORIENTAL BANK OF COMMERCE V. SUNDER LAL JAIN AND Anr[2]. In that case, the Supreme Court explained the purport of the Writ of Mandamus by extracting a note from ‘The Law of Extraordinary Legal Remedies’ by F.G.