The Delhi High Court today set aside a Central Information Commission's order to the Centre to reveal to it the communication between erstwhile Prime Minister Atal Behari Vajpayee and President K R Narayanan over the 2002 Gujarat riots.
Justice Anil Kumar gave the order, allowing the Centre's appeal against the CIC's directions.
"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 barred under Article 74(2) of the Constitution of India, the application of the petitioner seeking such an information will also be not maintainable," said the judge.
Article 74(2) of the Constitution bars the disclosure of the advice given by the Council of Ministers to the President.
While setting aside the order of the full bench of the CIC, Justice Kumar, who is demitting office today, also dismissed RTI applicant C Ramesh's plea saying he was not "entitled" to the communications exchanged between the then President and Prime Minister over the Gujarat riots.
Ramesh's request for making public the communications under the Right to Information (RTI) Act had been denied by the Central Public Information Officer and his appeal against the denial was also dismissed, subsequent to which he had moved the apex transparency panel CIC.
A full bench of the CIC on August 8, 2006 had called for the correspondences, sought by Ramesh, to examine whether their disclosure would serve or harm the public interest, after which it would issue appropriate orders.
The Centre had approached the Delhi High Court against the CIC order claiming that such disclosures would affect the sovereignty and integrity of the country.
The high court while setting aside the CIC order also observed that Article 74(2) of the Constitution cannot be made subservient to the transparency law as the same could not have been the intention of the legislature and even if it was, the same cannot come in effect without amending the Constitution.
"In the circumstances, the bar under Article 74(2) cannot be diluted and whittled down in any manner because of the class of documents it relates to. The respondent No.1 (CIC) is not an authority to decide whether the bar under Article 74(2) will apply or not.
"If it is construed in such a manner then the provision of Article 74(2) will become sub-serving to the provisions of the RTI Act which was not the intention of the Legislature and even if it is to be assumed that this is the intention of the Legislature, such an intention, without the amendment to the Constitution cannot be sustained," the court said.
The court also pointed out to the CIC that only the judges of the Supreme Court and high courts had the power to call for such material (the communications), to peruse them, under Articles 32 and 226 of the Constitution.
"The Judges of the Supreme Court and the high courts may peruse the material in exercise of their power under Article 32 and 226 of the Constitution of India. The CIC, however, will not have such power," the court said referring to the CIC's order calling for the communications to examine them.
"The CIC cannot claim parity with the judges of the Supreme Court and the high courts," Justice Kumar said and added that the interim order of the commission for perusal of the records was "wholly illegal and unconstitutional".
The court also held that the communications being sought are "deliberations", made by the then Prime Minister and President within the performance of their powers, which enjoy immunity under Article 361 of the Constitution.
"The documents in question are deliberations between the President and the Prime Minister within the performance of powers of the President of India or his office.
"As submitted by the learned counsel for the petitioner such documents by virtue of Article 361 would enjoy immunity and the immunity for the same cannot be asked nor can such documents be perused by the CIC," the court said.