Emergency records can't be made public: Prez secretariat

Indian Express : Tue Aug 31 2010 : New Delhi :

The communication between the then President Fakhruddin Ali Ahmed and Prime Minister Indira Gandhi on imposition of Emergency nearly 35 years ago cannot be made public, the President's Secretariat has said.

While withholding the information sought through an RTI plea, the Secretariat has cited Article 74 of the Constitution which says that the advice tendered by the Cabinet to the President "shall not be inquired into in any court".

In his RTI application, S C Agrawal had sought to know "complete and detailed information" on the declaration of internal Emergency in the country by the then President including any communication or advice received from Gandhi.

The reply from the President's Secretariat said, "The information sought is covered under Article 74 of the Constitution and hence cannot be disclosed."

"CPIO declined information as covered by Article 74 of the constitution and hence not disclosable (sic). But 'Right To Information Act 2005' has an over-riding effect on all previous provisions, and as such it is not justified to refuse any information which is not covered by section 8 of RTI Act," Agrawal said in his representation before the Appellate Authority at the Secretariat.

Quoting a news report on the issue, Agrawal said it indicated that no other public authorities including the Prime Minister's Office, Union Home Ministry or National Archives of India ever took the information as "undisclosable (sic)".

"Only thing (according to reports) was that the sought information could not be practically traced out. Now when the sought information exists at the President's Secretariat, it should not be denied because the sought information and documents are not covered by any of the sub-clauses of section eight," he said.

According to reports, former IAS officer M G Devasahayam has also filed a series of RTI application with the PMO seeking details of the Presidential proclamation of declaring Emergency in the country in 1975. But he could not get the information as it could not be traced.

The state of emergency was declared by Ahmed on advice by Gandhi on June 25, 1975 which lasted for 21 months till March 21, 1977.