Central Information Commission
Shri P.D Khandelwal vs Dep’T Of Personnel & Training, (Dopt) on 23 October, 2008
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2008/00081 dated 1-2-2008
Right to Information Act 2005 - Section 19
Appellant: Shri P.D Khandelwal
Respondent: Dep't of Personnel & Training, (DOPT)
FACTS
By an application of 26-4-07 Shri P.D. Khandelwal of NOIDA, U.P. applied to the CPIO, DoPT seeking the following information with regard to the file under which circular No. 18/12/99-EO (OM-II), Government of India, Secretariat of the Appointment Committee of the Cabinet, Department of Personnel & Training (Office of the Establishment Officer, New Delhi dated 18.12.21999 was issued.
"I am to say that I want to inspect the record/ file of the above mentioned subject."
To this he received a response from Shri Ravinder Kumar on 4-5-07 informing him as follows:
"The information requested for by you from this office cannot be supplied as it forms part of Cabinet papers including records of deliberations of the Secretaries and other officers and is exempted under Section 8 (1) (i) of the Act."
Upon this Shri Khandelwal moved his first appeal on 2-8-07 of which we do not have a copy on file, upon which Shri Alok Kumar, Appellate Authority and Director, Appointment Committee of the Cabinet in his order of 24-9-07 gave the detail and carefully though out answer in discussing the exemption from disclosures granted by Section 8 (1) (i) and proviso thereto Shri Alok Kumar has held that there should be no occasion or need for any info-seeker to ask for this class of information, as these are mandated, if any case, to be made public. But this stipulation (making them mandatorily public) is attracted, specifically, only in cases of "Decisions of Council of Ministers"
and, definitely, not in respect of any other class of "Cabinet Papers.
He therefore comes to the following conclusion:1
"The proviso, under section under 8 (1) (i), cannot travel beyond the legislative intent as reflected in the main section 8 (1) (i) and the proviso cannot be read to enable disclosure of all class of the Cabinet Papers."
This leads him to dismiss the appeal as follows:
"Unless these rules, framed under Article 77 (3), themselves provide for disclosure of information pertaining to the working of the cabinet and it s committees, no disclosure can be made pertaining to them, under the RTI Act. Therefore, the RTI Act has rightly provided for non-disclosure of the information pertaining to "Cabinet Papers'.
As far as "Decisions of the Council of Ministers" (as distinct from the deliberations of the Appointment Committee of the Cabinet) are concerned they are, in any case, to be reported to the President of India, as per Article 78 (a) of the Constitution of India, and now, in addition, they are to be made public as per proviso under 8 (1) (i) of the RTI Act, after the matter is complete/ decision taken.
Therefore, in view of afore quoted unambiguous provisions, the "Cabinet Papers" are outside the purview of the RTI Act.
In view of the aforementioned observations, I, therefore, hereby reject the appeal of Shri P. D. Khandelwal."
Appellant Shri Khandelwal has then moved his second appeal before us with the following prayer:
"The following relief or as is though of fit by the honourable commission be kindly be ordered.
1. Per Proviso to section 8 (1) (i) of the RTI Act, the file which contains the decision, the reasons thereof and the material on the basis of which the decision were taken be allowed for inspection, with regard to the circular quoted above dated, issued vide No. 18/12/99-SO (SM-II), dated 8.12.1999, (Without prejudice to the prayer of relief also claimed in S. No. 2, as below).
2. The complete file through which the circular got issued containing the decision should be directed to be allowed for the inspection, so that the full reasons their of and the complete material be got inspected as needed under the RTI Act.
3. Shri Ravindra Kumar is liable for the delay, which he has caused in providing the inspection, accordingly he be 2 imposed the Penalty @ Ra. 250/- per day i.e. for the period 27th May 2007 to till the date when the allows the inspection and till to day it comes delay of 134 days, i.e. of Rs. 33,500/- or more (250x134), subject to the limit of Rs. 25,000/-, if so.
4. Shri Ravindra Kumar be imposed the penalties, either for all or for some for the following or for any other also as the Honourable commission thinks fit.
I The appellant is constraint to request for action against him under section 18 (8) (b) of the Act for refusing access to information.
II Under 18 (8) (c) of the Act for trying not to give information within the specified time under the Act.
III under section 18 (8) (e) of the Act for trying to give the incomplete/ misleading information.
IV Under Section 18 (2) of the Act to initiate enquiry against him in the matter.
V Under section 20 (1) of the Act for imposing penalties upon him in personal capacities.
VI and also under section 20 (2) of the Act for initiating disciplinary proceeding against him under service Rules for knowingly denying the information etc. That he has tried to violate the appellant's Fundamental Right of freedom to seek information."
In his grounds for appeal he has also put forth following plea:
"What ever was allowable for inspection should have allowed the inspection by separating the record which were allowable for inspection, as above said but out rightly he has refused for inspection, including for those papers which could have been allowed for inspection, as above said."
The appeal was heard on 1-9-2008. The following are present:
Appellants:
Shri P.D. Khandelwal Respondents Shri Prabhat, Director (ACC) Shri Alok Kumar, Director Shri Ravindra Kumar, Under Secretary 3 Respondent Shri Alok Kumar submitted that if it were appellant's prayer only that such documents that were allowable for disclosure in light of his order in first appeal may be disclosed, which is the plea taken in the grounds for relief submitted by appellant that has been quoted above, he is prepared to do so through the application of doctrine of Severability of Section 10 (1). This however was not his request in his initial application. Appellant Shri Khandelwal, however, stated that the doctrine of severability cannot be applied in this case as it would leave to the discretion of the CPIO those documents which he would prefer to disclose while withholding those that appellant could find of use. He therefore insisted upon full disclosure.
Shri P.D. Khandelwal cited the decision of this Commission of 12-6-08 in appeal No. CIC/MA/A/2006/00204, 207 & 208 in Arvind Kejariwal vs. DOPT in which this Commission has held as follows:
"The Commission, therefore, directs the DoPT and the Cabinet Secretariat to allow inspection to the relevant files concerning empanelment of Additional Secretaries and Secretaries to the Government of India and to provide copies of the documents and records, as might be the specified by the appellant after inspection."
He further submitted that the provisos to Section 8 (1) (i) only further clarify the exemption granted u/s 8 (1) (i) but are not an exception to the exemption granted as contended by respondent Shri Alok Kumar. He cited the decisions in B.P. Santosh vs. CPIO, AMC of Kerala High Court, & Shri Rajinder Singh vs. Govt. of Punjab, SC, 1988, SLR 341. To this Shri Alok Kumar responded by submitting that the ACC was set up under Article 77 (3) of the Constitution of India and, therefore, it does not fall within the purview of RTI Act.
The issue before us is whether the term `Cabinet' is inter-changeable with that of 'Council of Ministers'. Shri P.D. Khandelwal has argued that there is no separate definition for 'Cabinet' and he has, therefore, cited the following Articles of the Constitution of India, with the comment described against each:
4"Article 74 (1) There shall be a Council of ministers with the Prime Minister as the Head to aid and advise the President in the exercise of his functions and in accordance with such advice.
Article 77 (3) The President shall make rules for the more convenient transaction of the business and the Govt. of India and for the allocation among ministers of the said Business.
Article 78 (9) It shall be the duty of the Prime Minister (A) to communicate to the President all decisions of the Council of .Ministers relating to the administration of the affairs of the Union and for legislations."
The argument of 1st Appellate Authority Shri Alok Kumar rests on the term `Cabinet' being distinguished from Council of Ministers with the only decision of Council of Ministers being disclosable and not cabinet papers of which the decisions of Council of Ministers are only a part.
Decision Notice The Constitution of India, per se, did not include the term "Cabinet", when it was drafted and later on adopted and enacted by the Constituent Assembly. The term "Cabinet" was, however, not unknown at the time when the Constitution was drafted. Lot of literature was available during that period about "Cabinet", "Cabinet System" and "Cabinet Government". Sir Ivor Jennings, in his "Cabinet Government", stated that the Cabinet is the supreme directing authority. It has to decide policy matters. It is a policy formulating body. When the Cabinet has determined on policy, the appropriate Department executes it either by administrative action within the law, or by drafting a Bill to be submitted to Parliament so as to change the law. The Cabinet is a general controlling body. It neither desires, nor is able to deal with all the numerous details of the Government. It expects a Minister to take all decisions that are of political importance. Every Minister must, therefore, exercise his own discretion as to what matters arising in his department ought to receive Cabinet sanction.
53. In the Indian context, the Cabinet is an inner body within the Council of Ministers, which is responsible for formulating the policy of the Government. It is the Council of Ministers that is collectively responsible to the Lok Sabha. The Prime Minister heads the Council of Ministers and it is he, primus inter pares 1 who determines which of the Ministers should be Members of the Cabinet. [Page 651-Advanced Law Lexicon]
4. It is a matter of common knowledge that the Council of Ministers consist of the Prime Minister, Cabinet Ministers, Ministers of State and the Civil Services. The 44th Amendment to the Constitution of India for the first time not only used the term "Cabinet", but also literally defined it. Clause 3 of Article 352, which was inserted by 44th Amendment, reads as under: -
"The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing."
5. As per Section 8 of the Right to Information Act, 2005, a "Public Authority" is not obliged to disclose Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other Officers. Section 8(1) sub-section (i) subjects this general exemption in regard to Cabinet papers to two provisos, which are as under: -
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over 2 :
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed."
6. From a plain reading of the above provisos, the following may be inferred: -
i) "Cabinet papers, which include the records of deliberations of the Council of Ministers, Secretaries and other officers shall be 1 First among equals.2
Underlined by us for emphasis 6 disclosed after the decision has been taken and the matter is complete or over.
ii) The matters which are otherwise exempted under Section 8 shall not be disclosed even after the decision has been taken and the matter is complete or over.
iii) Every decision of the Council of Ministers is a decision of the Cabinet as all Cabinet Ministers are also a part of the Council of Ministers. The Ministers of State are also a part of the Council of Ministers, but they are not Cabinet Ministers.
As we have observed above, the plea taken by the First Appellate Authority the decision of the Council of Ministers are disclosable but Cabinet papers are not, is totally untenable. Every decision of the Council of Ministers is a decision of the Cabinet and, as such, all records concerning such decision or related thereto shall fall within the category of "Cabinet papers" and, as such, disclosable under Section 8(1) sub-section (i) after the decision is taken and the matter is complete, and over.
The issue is decided accordingly.
7. The respondents have not pleaded before us that the matter is still pending or is yet to be decided. Under these circumstances, it can be presumed that it is complete and over and, as such, it cannot be held to be exempted within the meaning of Section 8(1) (i).
8. The Commission accordingly directs that the requested information be made available to the appellant within a period of fifteen working days from the date of this order.
The plea of respondents that action taken under Article 77(3) of the Constitution is impervious to the application of the RTI Act is unacceptable. Under that Act only such information as is exempt from disclosure under Sec 7 8 sub-section (1) or held by an authority listed under the Second Schedule of the Act can be refused disclosure. Besides Sec 22 of the Act provides that the provisions of the RTI Act "shall have effect notwithstanding anything inconsistent therewith contained in.... any other law for the time being in force..."
The Appeal is allowed accordingly.
Reserved in the hearing this Decision is announced in open chamber on this the twenty-third day of October 2008. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 23- 10-2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 23-10-2008 8