Delhi HC - CIC cannot view the communication between PM and President over the Gujarat riots

Justice Anil Kumar of the Delhi High Court set aside an order of the Central Information Commission (CIC) to the Central Government calling for the files related to the communication between erstwhile Prime Minister Atal Behari Vajpayee and President K R Narayanan over the 2002 Gujarat riots.

An application was filed under the Right to Information (RTI) Act by C Ramesh requesting for providing the communications exchanged between the then President and Prime Minister over the Gujarat riots. The Public Information Officer (PIO) denied the information and the first appeal was rejected. When the appellant filed a second appeal, the full bench of CIC heard the appeal on 8^th August 2006 and called for the correspondence sought by the appellant to examine whether their disclosure would serve or harm the public interest. Against the order of the CIC, the Central Government had approached the Delhi High Court claiming that such disclosures would affect the sovereignty and integrity of the country.

The government said the correspondence between the President and the Prime minister were "privileged" documents under Article 74 of the Constitution and hence the provisions of the RTI Act could not overide the same. The government submitted "By virtue of Article 361 of the Constitution, the deliberations between the prime minister and the president enjoy complete immunity as the documents are 'classified documents' and thus enjoy immunity from disclosure not because of their contents but because of the class to which they belong, and therefore the disclosure of the same is protected in public interest."

Hearing an appeal filed by the Centre against the CIC's directions, Justice Anil Kumar said "In the facts and circumstances, the order of the CIC of August 8, 2006 is liable to be set aside and the CIC cannot direct the petitioner (Centre) to produce the correspondence between the President and the Prime Minister….Since the CIC is not entitled to peruse the correspondence between the President and the Prime Minister, as it is be barred under Article 74(2) of the Constitution of India, the application of the petitioner seeking such an information will also be not maintainable." Justice Anil Kumar demitted office yesterday and this judgment was amongst the last issued by him. The High Court also dismissed the plea of the RTI applicant saying he was not entitled to the communications exchanged between the then President and Prime Minister over the Gujarat riots.

Relevant legal provisions

1. Article 74(2) of the Constitution bars the disclosure of the advice given by the Council of Ministers to the President.

2. Section 18 (4) of the Right to Information (RTI) Act says “Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds”.