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Report No. 88

9.5. Material for reconsideration of the advice.-

The matter could be viewed from a pragmatic angle also. Under Article 74(1), proviso of the Constitution,1 the President has the right to require the Ministers to reconsider the advice tendered by them. Now, the President can discharge this constitutional responsibility only if he has before him the materials that had weighed with the Ministers in tendering their advice. It is only on the basis of these materials that he can satisfy himself about the propriety of the advice tendered and of the extent to which the advice is warranted by the materials. What "reasons" seeks to express is the mental process of those who give the advice.

This mental process does not operate in a vacuum; it operates in a particular setting, from which it ought not to be separated. It is common practice that the background information and documents which are operative in the minds of those whose business it is to advise on high matters of State are referred to (though not set out in detail in so many words) in their advice. It is impossible to view the advice in isolation from such materials, relevant to and referred to in the advice, thereby constituting the very foundation of the advice.

1. Para. 9.1, supra.

Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back

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