Why Narayanan's correspondence with Vajpayee on Gujarat riots needs to be disclosed

(Hindustan Times
May 23, 2007)

Dear Atalji...

by AG Noorani


At stake in the case on the disclosure of the correspondence between former President KR Narayanan and former Prime Minister Atal Bihari Vajpayee from February 28 to March 15, 2002 on the Gujarat pogrom is not only the people’s right to know but also the fundamentals of the parliamentary system — the relationship between the President and the PM and the latter’s accountability to Parliament and the nation.

The legal issues are narrow, if not irrelevant, and were ably disposed of by a bench of the Central Information Commission headed by Wajahat Habibullah. Section 22 of the Right to Information Act, 2005 says that it will have effect notwithstanding the Official Secrets Act “and any other law” in force. That includes Sections 123 and 124 of the Evidence Act commonly invoked to keep records of “affairs of State” and “official communications” secret.

Articles 74(2), 78 and 361 of the Constitution are, together, based on the maxim of the British Constitution that the Crown can do no wrong. It acts on the advice of the Cabinet which is answerable to Parliament and the courts for the actions it takes in the name of the Crown. BR Ambedkar, in the Constituent Assembly on November 4, 1948, “The President occupies the same position as the King under the English Constitution.” The Supreme Court has not only endorsed this view but endorsed also the application of Britain’s ‘conventions’.

Article 361 exempts the President from answerability ‘to any court’ for the exercise of his powers and performance of his duties. Art. 74(2) says “The question whether any, and if so what, advice was tendered by ministers to the President shall not be enquired into in any court.” The Supreme Court has ruled that while the ‘advice’ remains secret, the material on which it is based is not. If action is taken to the detriment of anyone’s rights — imposition of President’s Rule — the court can ask whether there was material to justify it.

But ‘advice’ does not exhaust the totality of the President’s sphere of activity. The President is not a cipher. Ambedkar told the assembly on December 30, 1948, that “there is a vast deal of difference between prerogatives and functions as such”. Functions are performed on “advice”; prerogatives are exercised in the President’s discretion, however few they may be. Walter Bagehot famously wrote that the Crown has “three rights — the right to be consulted, the right to encourage, the right to warn”. Article 78 imposes on the PM the duties of consultant and empowers the President to demand from him “information” on the “affairs of the Union”. As the Supreme Court summed up the result, the President is kept “in close touch” with the PM and “the imprint of his personality may chasten and correct the political government”.

President Narayanan’s letters fell in this realm. The PM offered no “advice” to which Art. 74(2) could possibly apply. The President in his discretion exhorted the PM to quell the pogrom. Parliament and the nation are entitled to see that record. Ambedkar’s authoritative exposition puts it beyond doubt. He said on 31 December, 1948 that there were two ways of enforcing the conventions of the parliamentary system embodied in the draft instrument of Instructions to the President. “One way is to permit the court to enquire and to adjudicate upon the validity of the thing. The other is to leave the matter to the legislature itself: so that it could, by a censure motion, ‘compel the ministry to give proper advice to the President’.”

That is why Art.74(2) bars the courts from inquiring into the advice, while leaving it open to Parliament and the nation to probe into this matter. The Instrument was dropped and the matter left entirely to convention. But the substance is not affected. The courts are barred; Parliament and the nation are not. They have a right to know whether the President is kept informed and correspondingly, whether he has remonstrated to the PM on a grave crisis. The Governor of Tamil Nadu, S.K. Kharava’s reproachful letter to Chief Minister MGR dated 20 May, 1986 was published in July 1986.

During the abdication crisis in the Britain in 1936, “discussions between the monarch and the Prime Minister were shared with the British Parliament”. On 20 July, 1986, the Sunday Times reported that “sources close to the Queen” said that she is dismayed by many of Mrs Thatcher’s policies”. Questions were asked on this in the House of Commons on 22 July. The Speaker, Bernard Weatherill did not rule them out of order.

Narayanan’s letters were read by a Deputy Secretary in the Ministry of Personnel, Harjot Kaur. Her letter of 28 November, 2005 refusing disclosure, mechanically recited Section 8(1)(a) of the RTI Act, “The disclosure of which would prejudicially affect the sovereignty and integrity of India the security, strategic, scientific or economic interests of the State etc. (sic). In these circumstances copies cannot be provided.”

The CIC rightly remarked that “it is difficult to understand as to on what grounds the information has been denied. It is also difficult to comprehend as to how the disclosure of the information is going to affect the strategic, scientific or economic interests of the State. It appears that the denial has been communicated in a mechanical manner... the only relevant ground for denial could be that the disclosure could prejudicially affect the security of the nation and not on other grounds like the strategic, scientific or economic interests of the State etc”.

The CIC felt it should examine the documents to decide “whether larger public interest would require disclosure of the documents” and directed their production. The government-moved ‘National Security’ was not affected by the pogrom so as to attract a Proclamation of Emergency under Art. 352. It was a grave “internal disturbance” which it was the Centre’s duty to curb, under Art.355; whether by imposing President’s Rule or deployment of the army. Richard Crossman’s diaries recorded Cabinet proceedings. But the court refused to grant an injunction against their publication. There is no rule that “once a confidence, always a confidence”. The court must “ensure that restrictions are not imposed beyond the strict requirement of public need”. There must be “a limit in time after which the confidential character of the information, and the duty of the court to restrain publication, will lapse”.

Geoffrey Robertson Q.C. and Andrew Nicol Q.C point out in their work Media Law: “Information cannot be protected from disclosure if it can be gleaned (sic) from public sources or if its originator has already circulated it to a number of outsiders.” A lot was ‘gleaned’ by the media. Narayanan himself disclosed it all in a press interview in March 2005: “There was governmental and administrative support for the communal riots in Gujarat. I gave several letters to Prime Minister Vajpayee in this regard on this issue. I met him personally and talked to him directly. But Vajpayee did not do anything effective... Had the military been given powers to shoot, the carnage in Gujarat could have been avoided to a great extent. I feel there was a conspiracy involving the state and central governments behind the Gujarat riots.”

Now five years later, the public interest in disclosure of the correspondence on this sorry episode is incontestable.