Refuting the Government’s contention that the documents could affect public interest, Justice G T Nanavati said it was most ridiculous on part of the Government to claim privilege for something that is already known to the public. ”As the former President had spoken about the letters in the media and also written to the Commission about it, when he was asked to, it is most ridiculous that the Government wants to seek privilege,” he told Additional Solicitor General Mohan Parasaran, who was pleading the Centre’s case before the Commission.
Mr Parasaran submitted that these are papers relating to function of the Cabinet. ”Letters written by the President to the Prime Minister are in the nature of a high level inter-departmental communication by the highest constitutional authority which should be compulsorily granted immunity,” he said. When asked by judges, he revealed that the President’s first letter to the Prime Minister was on March 4.
The Government, in its fresh affidavit, said it ”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).” It also said, ”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 The documents, which are unpublished official records relating to the affairs of the State, would, if produced, cause great injury to the public interest.” Citing a Supreme Court judgement (in R K Jain case), Dr Mukul Sinha, an advocate for the Jan Sangharsh Manch, said the Government can claim absolute privilege in matters relating to diplomacy, military and national security and not in this case.
The Commission sought production of the letters from the President’s Secretariat on a plea by Dr Sinha. The President’s office then referred the matter to the Centre, which refused to comply with the request, claiming privilege. The Commission’s next hearing is slated to be held on February 18.