Show nation Emergency papers, CIC tells UPA government

What led to the dark days of the Emergency may finally be known to Indians. In a landmark order, Shailesh Gandhi, one of the members of the Central Information Commission, has asked the president's secretariat to give complete and detailed information on all documents, records, deliberations, documents, correspondence, notings, etc relating to the declaration of an internal emergency in the country by then president Fakhruddin Ali Ahmed, including any communication received from then Prime Minister Indira Gandhi.

The order came on an application filed by Delhi-based RTI (right to information) user Subhash Chandra Agarwal. In his application, Agarwal had sought details on all correspondence between the then president and the then prime minister in the run-up to the Emergency.

Gandhi said the Supreme Court had, in an earlier order, defined the meaning and scope of Article 74 of the Constitution and, more importantly, clause 2 of the article. Article 74(2) does not allow the court to look into the advice tendered by ministers to the president. But quoting the court's order, he said the advice tendered by the council of ministers ought to be differentiated from the records and documents on the basis of which that advice was tendered. The court had observed that material placed could not become part of the advice tendered on the basis of such material.

Quoting the Supreme Court, Gandhi said, "...The argument that the advice tendered to the president comprised material as well and, therefore, calling upon the Union of India to disclose the material would amount to compelling the disclosure of the advice is, if we can say so respectfully, to indulge in sophistry. The material placed before the president by the minister/council of ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice. The material may be placed before the president to acquaint him — and if need be to satisfy him — that the advice being tendered to him is the proper one. But it cannot mean that such material, by dint of being placed before the president in support of the advice, becomes advice itself. One can understand if the advice is tendered in writing in such a case that writing is the advice and is covered by the protection provided by Article 74(2). But it is difficult to appreciate how does the supporting material become part of advice. The respondents cannot say that whatever the president sees — or whatever is placed before the president — becomes prohibited material and cannot be seen or summoned by the court. Article 74(2) must be interpreted and understood in the context of the entire constitutional system. Undue emphasis and expansion of its parameters would engulf valuable constitutional guarantees...."

Going a step further, Gandhi's order said that the public information officer could deny this information only under clauses 8(a), 8(c) and 8(I) of sub-section 1, which allow the PIO to deny information that would hurt the integrity, sovereignty, and security of the country, or lead to a breach of privilege of any legislature, or lead to the revelation of cabinet papers that are yet to be decided upon.

Gandhi pointed out that another provision allows documents older than 20 years to be revealed to the public as they do not harm any interests. The Emergency was imposed more than 35 years ago.

"The period of Emergency is considered to be the biggest challenge to India’s commitment to democracy," said Gandhi.

"This period was symbolised by curtailment of the fundamental rights of citizens, restrictions on the freedom of the press, illegal detention and abuse of citizens, and enactment of draconian laws. Most institutions of governance when asked to bend prostrated themselves and crawled. This showed that the institutions of democracy had not become robust enough to withstand an assault. Given the same, it is imperative for citizens to know the reasons why and how democracy in India was nearly lost. The public interest in disclosing the materials/documents on the basis of which Emergency was declared is immense and the citizens of India have a right to know the same. India needs to learn its lessons well, and without this information, citizens will not be able to derive the correct inferences of a watershed event in its journey of democracy.”