Central Information Commission
.Shri R. C. Gupta vs Ministry Of Personnel, Public ... on 13 August, 2010
CENTRAL INFORMATION COMMISSION
Adjunct to Appeal No. CIC/WB/A/2008/001229 dated 10-7-2008
Right to Information Act 2005 - Section 19
Appellant: Shri R. C. Gupta
Respondent: Department of Personnel and Training (DOPT)
Decision announced 13.8.2010
FACTS
By our decision of 14.12.2009 we had directed as follows: -
"In this matter there is really no basis for further application of mind. In our decision dated 23.10.08 in F. No. CIC/WB/A/2008/00081; PD Khandelwal vs. DOPT, we have decided as follows:
"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.
3. 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 pares1 who determines which of the Ministers should be Members of the Cabinet.
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 1 "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 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:
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 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 that 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."
Besides, this decision is described in its joint decision in WP (Civil) Nos. 8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007, 7930/2009 and 3607 of 2007 decided on 30.11.09, which includes WP No. 8396/2009, UOI thru DoPT vs. CIC & PD Khandelwal1 as the legal position having been "succulently expounded" in our order of 23.10.08, as follows:
2"On the question of distinction between the Cabinet and the Council of Ministers, I entirely agree with the reasoning given by the Chief Information Commissioner2 which has been quoted above."
In light of this, the basis for the stand taken by the DOPT, however, painstakingly constructed, has been established to be without foundation. The information sought will now be provided to appellant Shri R. C. Gupta within 15 working days of the date of receipt of this decision by CPIO Shri Deepak Israni, Under Secretary, DOPT under intimation to the Jt. Registrar Shri KP Shreyaskar, CIC. The appeal is, therefore, allowed. There will be no costs."
Appellant Shri R. C. Gupta on the other hand has complained to this Commission that the decision had not been complied with. By our decision dated 12.4.2010, CPIO Shri Deepak Israni, Under Secretary, DOPT was asked to submit a compliance report on this decision notice "to reach this Commission on or before 26th April 2010." In response to this we have received a letter of 20th April 2010 from CPIO Shri Deepak Israni, Under Secretary as follows: -
"It is submitted that in response to CIC decision dated 14.12.2009, a note was put up by the undersigned in the capacity of CPIO to the Appellate Authority for providing necessary information to the appellant as per directions of the CIC. However, as the matter pertains to ACC, a decision was taken in this Department to obtain the views of Cabinet Secretariat before furnishing information to the applicant, Shri R. C. Gupta. Accordingly, the relevant File along with F. No. 16(10) EO/02(ACC) containing the ACC decision was sent to Cabinet Secretariat on 18.12.2009 for their views/ comments. However, this Secretariat's files as well as the views of the Cabinet Secretariat in the matter are still to be received from them. In view of this, the undersigned is unable to provide information to the applicant till date.' Subsequently we have received a letter of 22nd April 2010 from CPIO Shri Deepak Israni informing that the Cabinet Secretariat has been requested to expedite the matter.
NOTICE The decision of this Commission is unequivocal and clear. It is not for the CPIO to then seek orders of a third party on the matter of compliance with such a Decision Notice that, under section 19 of sub-section (7) of the RTI Act, 3 'shall be binding'. Under the circumstances we can only conclude that CPIO Shri Deepak Israni has obstructed the furnishing of the information and, therefore, rendered himself liable for penalty. CPIO Shri Deepak Israni, Under Secretary, DOPT will, therefore, show cause by 27th August, 2010 as to why he should not be held liable for penalty amounting to Rs. 25,000/-. Shri Israni may submit his response to this notice in writing addressed to Shri Pankaj K. P. Shreyaskar, Joint Registrar, Central Information Commission by the date prescribed failing which the Commission reserves the right to proceed in imposition of penalty under section 20 (1). Copy of this notice will also be sent to the appellant Shri R.C. Gupta.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 13-8-2010 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 13-8-2010 4