By Venkatesh Nayak*
The border State of Arunachal Pradesh in the northeastern corner of India in the news again – for all the wrong reasons – again. For several weeks crisis had been brewing over the existence or the lack of majority support for the Indian National Congress-led Government in that State. Thanks to the electronic media, video clippings of some meetings between some of the legislators and the Governor of that State showed the extent of distrust that exists between them.
On 26 January, 2016 after India celebrated its 67th Republic day, the President of India issued a Proclamation under Article 356 of the Constitution taking over the reins of the government of Arunachal Pradesh. Ostensibly this action was taken on the basis of report(s) received from the Governor and the subsequent recommendation of the Union Cabinet to the President of India about the “breakdown of the constitutional machinery” in that State. The President is reported to have sought some clarifications on the Cabinet’s recommendation before issuing the Proclamation under Article 356.
The entire matter is now before the Supreme Court of India. The Apex Court demanded production of the report(s) of the Governor of Arunachal Pradesh that resulted in the imposition of President’s rule in that State. According to media reports the Additional Solicitor General is sought to have opposed the disclosure of the report(s) to the petitioners. Unfazed by this refusal, the Apex Court is said to have directed the production of the report(s) in sealed cover within a short period of time. Latest media reports indicate that the report(s) have since been submitted to the Apex Court in sealed cover.
The stance of the Additional Solicitor General seems to be in direct opposition to the stance taken in the past about the need for transparency of these reports by at least one senior member of the Union Cabinet, Manohar Parrikar, currently the Union Minister for Defence.
As Leader of the Opposition in Goa, Parrikar sought the Governor’s report under the RTI Act in 2008
In July-August, 2007 the political developments in Goa resulted in the then State Government losing its majority. Eventually the State was placed under President’s Rule. Manohar Parrikar who was the Leader of the Opposition then, sought copies of the Governor’s report(s) sent to the President of India under Article 356 of the Constitution. In September 2007, he is said to have filed a formal request for information under The Right to Information Act, 2005 (RTI Act) with the Raj Bhavan. The Public Information Officer (PIO) of Goa Raj Bhavan rejected the request claiming that the Governor was not a public authority under the RTI Act and was therefore exempted from its coverage.
Eventually, the matter escalated to the Goa State Information Commission (SIC) which ruled in favour of disclosure of the Governor’s reports. The Raj Bhavan challenged the SIC’s decision before the Panjim Bench of the Bombay High Court. The single-judge Bench upheld the decision. That order was also challenged by the Raj Bhavan before the Division Bench (DB) of the Bombay High Court. The DB also ruled in favour of disclosure detailing why there must be transparency in relation to such reports. It rejected the contention of the Governor’s Secretariat that his position was akin to that of the King of the United Kingdom – answerable to none, being a sovereign authority. At all these levels, the RTI applicant who is currently the Defence Minister was defended by his lawyers who argued in favour of transparency and disclosure of the Article 356 report(s) of the Governor.
Finally in 2012, the Goa Raj Bhavan challenged the DB judgement before the Supreme Court of India making similar claims against disclosure. The matter was initially heard by a Bench headed by Justice Dalveer Bhandari. After he moved on to the International Court of Justice, there has been no effective hearing in this case. It has become a case of “tareeq pe tareeq” a la Sunny Deol in that popular Bollywood film, “Damini”.
CHRI has intervened in the aforementioned Supreme Court case to argue how and why the Governor is a public authority under the RTI Act. We also pointed out that the Rashtrapati Bhawan regularly responds to RTI applications. The Governor, therefore, cannot claim any higher privilege. Although written submissions have been filed, oral arguments are pending due to the repeated postponement of the hearing. In between, elections were held in Goa and Manohar Parrikar was elected Chief Minister. Obviously, there was no need to continue the litigation any more. CHRI wrote to him recommending that the Raj Bhavan be advised to withdraw the case to prevent wastage of taxpayer’s money on a non-issue. We are still waiting for a response to this letter. What is perplexing though is how expectations of and commitment to transparency change with a change in the chair that one occupies.
Should Article 356 reports be in the public domain?
The ultimate question is – should Governor’s reports be in the public domain. Under Section 4(1)(c) of the RTI Act, the government has a duty to disclose all relevant facts while announcing important decisions that affect the public at large. The decision to impose President’s Rule in a State undoubtedly falls in this category. Yet any reader will appreciate that the Proclamation of President’s Rule in Arunachal Pradesh contains no details about why such a step was taken.
It is difficult to believe that a report made under Article 356 of the Constitution will contain such explosive material that its disclosure in the public domain will be injurious to the public interest. In the case of Rameshwar Prasad & ors. vs Union of India & Anr. [Writ Petition (Civil) 257 of 2005] the Apex Court has cited the entire contents of the Bihar Governor’s reports sent under Article 356 to the President of India prior to the imposition of President’s Rule in that State, in 2005.
So unless it can be shown that disclosing the contents of the Arunachal Pradesh Governor’s report(s) under Article 356 can cause harm to any public interest which is recognised as a legitimate ground for refusal of access to information under the RTI Act, it must be placed in the public domain so that people may appreciate the circumstances that led to the decision and also debate its necessity in an informed manner.
Earlier this week, I have sought copies of all correspondence including the Article 356 report(s) relating to Arunachal Pradesh under the RTI Act as a test case. Now that the documents stand submitted to the Apex Court in sealed cover, we must wait for the Court to decide on disclosure of the report(s) to the petitioners and other parties. The fate of my RTI will also depend on the Apex Court’s decision. Until then it is a “Quest for Transparency” as mentioned on the Prime Minister’s website.
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi