New Delhi: The President's Secretariat on Wednesday was directed by the Central Information Commission (CIC) to make public all the documents on the declaration of Emergency by the then President Fakhruddin Ali Ahmed in 1975 including communications from the then Prime Minister Indira Gandhi.

However, the transparency panel exempted any "advice" tendered by Gandhi to Ahmed on the imposition of internal Emergency as it would be a privileged document under Article
74 of the Constitution which cannot be made public.

In his order delivered on an RTI query, Information Commissioner Shailesh Gandhi termed the Emergency as a "challenge to India's commitment to democracy" which was symbolised by "curtailment of fundamental rights of citizens, restrictions on freedom of 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 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," Gandhi said and asked the President's Secretariat to
disclose the details to the RTI applicant before July 10.

There was "immense" public interest in disclosure of the materials and documents on the basis of which Emergency was declared, he further said.

"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," Gandhi said while ordering the disclosure of documents.

The case relates to an RTI application filed by activist S C Agrawal wherein he had sought from the President's Secretariat the copies of all records, documents and file notings on the imposition of emergency in 1975.

The information was denied citing Article 74 of the Constitution which says "the question whether any, and if so what, advice was tendered by Ministers to the President shall
not be inquired into in any court"

Citing famous Supreme Court ruling in the S R Bommai's case against the Government, Gandhi said Article 74(2) of the Constitution of India protects the confidentiality of only the
advice tendered by the Council of Ministers to the President.

"This Constitutional protection has not been extended to the material on the basis of which such advice is tendered. Consequently, a Court can call upon such material to be disclosed before it, and though the sufficiency or otherwise of the material cannot be questioned, the legitimacy of the inference drawn from such material is open to judicial review," he said.

Gandhi directed the Secretariat to provide to Agrawal before July 10, 2011 complete information including "all documents, records, deliberations, correspondence, file-notings, on declaration of internal Emergency in the country by Fakhruddin Ali Ahmed, the then President including communication received from Mrs Indira Gandhi, the then Prime
Minister, except any advice received from her."

Agenies