The Hindu : National : Letters cannot be disclosed in public interest: Centre

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Wednesday, Feb 01, 2006

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National

Letters cannot be disclosed in public interest: Centre

Legal Correspondent

Nanavati-Shah panel to consider fresh affidavit

There cannot be any selective disclosure Public faith in Commissions should not suffer Privilege claim not a matter of expediency

K.R. Narayanan

New Delhi : The Centre on Tuesday reiterated that the correspondence between the former President, K.R. Narayanan, and the former Prime Minister, A.B. Vajpayee, on the steps taken to control the 2002 Gujarat riots could not be made available to the Nanavati-Shah Commission in the public interest.

In a fresh affidavit filed before the Commission, probing the Godhra riots, in Ahmedabad, the Centre said: "Each of the documents contains several important contents which, if produced, would seriously prejudice and affect the public interest in a variety of ways, consequently affecting the national interest as well."

Also, "there cannot be a selective disclosure of some contents of the letters and correspondence. The documents, which are unpublished official records relating to the affairs of the State, would, if produced, cause great injury to the public interest."

Atal Behari Vajpayee

The Commission sought production of the letters from the President's Secretariat after an advocate, representing a section of the riot-hit families, said these could hold vital clues to the Government's "inaction" in controlling the riots. The President's office referred the matter to the Centre and it filed an affidavit claiming privilege.

Strictures on Government

On January 2, the Commission passed strictures on the Centre for seeking special privilege on the communication and asked its counsel, Additional Solicitor General Mohan Parasaran, to file a fresh affidavit. It was filed now and the Commission would to take it up for consideration on February 8.

Justifying the non-disclosure, the affidavit stated: "The said correspondence cannot be vivisected or read in isolation based on some statements made by the former President. Every letter is to be read as a whole. The Government of India strongly believes that the public confidence in Commissions of Inquiry should not be eroded and, on the other hand, should be enhanced particularly with regard to the Commissions headed by retired and reputed judges of the Supreme Court."

The Centre said the claim of privilege could not be waived for this class of documents.

The Government "is under a constitutional duty to claim privilege and not to waive it in view of Article 74 (2) [that protects from disclosure even matters on official files relating to Cabinet decisions]."

It said, "exchange of letters/correspondence or deliberations between the highest constitutional functionaries has absolute immunity from disclosure under Article 74 (2)."

The affidavit said the "privilege from disclosure has not been claimed on the ground of expediency or administrative inconvenience or to avoid an embarrassing or inconvenient situation but is made in the light of what has been stated in Articles 74 (2), 78 and 361 and also Sections 123 and 124 of the Evidence Act."

These letters were not evidentiary documents or material relevant to a decision taken. Referring to the Commission's contention that the former President himself had disclosed the contents of the letters, the Centre said he had not disclosed the correspondence in its entirety. Disclosure of parts of the documents would give a completely distorted picture of the correspondence.

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