Central Information Commission
Shri Sudhir Awasthi vs Dep’T. Of Personnel & Training (Dopt) ... on 5 January, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CICWB/A/2009/000533 & 532 both dated 29.4.2009
Right to Information Act 2005 - Section 19
Appellant - Shri Sudhir Awasthi
Respondent - Dep't. of Personnel & Training (DoPT)
Cabinet Secretariat
Date of hearing: 30.12.2009
Decision Announced 5.1.'10
Facts:
These are two appeals before us both stemming from the same application moved by Shri Sudhir Awasthi, Director General (Rules & Manuals), Police Radio Headquarters, Luck now, UP before the DOPT and the Cabinet Secretary. The application dated 6.10.08 in both cases, addressed to the CPIO, MHA Smt. Inderjeet Kaur, Director is as below:
"1. Please provide list of IPS Officers of 1973 and 1974 Batches empanelled during the year 2008 for posting in the rank of Director General or equivalent in Govt. of India.
2. Please provide copy of guidelines, criteria, standards, and benchmarks laid down and followed during the process of empanelment.
3. Please elaborate the grounds, yardsticks and bench mark points or any other criteria in clear terms on which certain officers have been approved for empanelment and some others have not been found fit for the same.
4. It has been gathered that I have not been empanelled for promotion, and positing as Director- General or equivalent in the Govt. of India. It is requested that clear, explicit and unambiguous grounds for the same may please be provided.
5. Whether any meeting of a committee of senior officers was held to consider the empanelment of the concerned officers. Please provide constitution of the committee and minute of the meeting held in this respect.
6. Please provide copy of broadsheet of officers prepared for consideration of empanelment alongwith 1 all the details, comments, points etc and observations/ remarks of various officers/ committee members.
7. Please provide copies of all orders/ notes on the concerned file right from the Ministry of Home Affairs, Ministry of Personnel and Training, cabinet Secretariat and primer Minister's Office.
8. Please also provide the guidelines, criteria, standards and benchmarks followed for empanelment of IPS Officers of 1974 batch to the rank of Addl. Director General of Police.
9. What was the minimum benchmark laid down and followed for empanelment to the rank of Addl. D. G.? Please provide the details of grounds in explicit terms in a chart of all the officers on which they were approved or rejected. Please also clarify the grounds why I could not qualify for the same.
10. Please provide minute of the meeting of senior officers held for empanelment of 1974 batch IPS Officers to the rank of Addl. D. G. and copy of notes, observations and orders on the concerned file right from the Ministry of Home Affairs to Ministry of Personnel and Training, Cabinet Secretariat and PMO."
File No. CIC/WB/A/2009/00532 To this application Shri Sudhir Awasthi received response from CPIO Shri Jai Prakash, Under Secretary (SM-III), DOPT dated 28.11.08, as follows:
S. No. Reply
1 Copies of the letters dated 9.1.2008 and 10.9.2008,
conveying the approval of the ACC, for empanelment of IPS Officers of 1971 batch to 1974 batch, to the MHA, is enclosed.
2 to 10 The requisite information pertains to the Cabinet Secretariat as such the concerned CPIO of the Cabinet Secretariat Shri Sunil Mishra, Director, Cabinet Secretariat, New Delhi may be approached.
Shri Awasthi then moved an appeal before Shri A. K. Singhal, Director (SM), DOPT on 19.12.08, pleading as follows:
"It is requested that the requisite information relating to ADG level empanelment of IPS officers of 1974 batch (points no.2
8 to 10 of my questionnaire) may please be provided to me early."
In this appeal he has also referred to a refusal received from Shri Sunil Mishra, Director, Cabinet Secretariat.
Upon this Shri A. K. Singhal, Director (SM), DOPT in his order of 13.1.09 has allowed the appeal in part, as follows:
"The CPIO is requested to go through the concerned file and examine the information available therein with regard to various provisions of the RTI Act, 2005 and take further necessary action in this regard within a period of 2 weeks from the date of receipt of this order."
In compliance CPIO Shri Jai Prakash, Under Secretary (SM-III) in his letter of 15.1.09 has provided the following further information:
"The matter has been re-examined keeping in view the above said Order of the First Appellate Authority and the provisions of the RTI Act, 2005. Please find enclosed photocopies of the Ministry of Home Affairs OM No. 1- 28017/2/2005-IPS. IV dated 10.4.2006 and minute of Selection Committee meeting held on 4.5.2006 to consider empanelment of Additional Director General of equivalent at the Centre."
This has brought Shri Awasthi, after some further correspondence between him and CPIO, in second appeal before us with the following prayer:
"(i) Shri Jaiperkash, CPIO & Under Secretary, DOP&T and Shri A. K. Singhal, Director, SM and I appellate authority, DOP&T may kindly be directed to provide the Information requested by me regarding ADG level empanelment of 1974 Batch IPS officers in the Govt. of India.
(i) Such other orders as deemed suitable to uphold the Transparency in empanelment process of IPS officers to the rank of Inspector General of Police/ Jt. Secretary and above in the Govt. of India."
This appeal is grounded on the following:
3"No replies to pts No. 8 and 9 have been provided by Shri Jai Prakash regarding guidelines, criteria, standards and benchmarks etc. adopted and followed for the empanelment of IPS Officers 1 to the rank of ADG and equivalent in the Govt. of India and grounds for selection or rejection of various officers for the panel."
File No. CIC/WB/A/2009/00532 In the meantime by her order of 20.10.08 CPIO Ms. Inderjeet Kaur, Director (Police), MHA has transferred the application to the CPIO, Cabinet Secretariat under rule 6(3) of the RTI Act. In this case the response received from CPIO Shri Sunil Mishra, Director, Cabinet Secretariat dated 19.11.08 only refused the information sought u/s 8(1)(h) and 8(1)(j) of the RTI Act. Shri Sudhir Awasthi appealed to Shri Rajiv Kumar, Jt. Secretary, Cabinet Secretariat, disputing both grounds of refusal as follows:
1. "This clause is not distantly applicable in this case as I have requested the information regarding guidelines, criteria and benchmarks etc for empanelment of 1974 batch IPS officers to the rank of Director General in the Govt. of India, and my exclusion from the same, minute of the meeting of selection committee headed by the Cabinet Secretary, notings/ comments/ observations etc and other related information from the concerned files. This is not a matter relating to investigation of any criminal case or apprehension or prosecution of any offender. It is not understood as how provisions of this clause have been invoked to deny information to me which relates to empanelment process of 1974 Batch IPS Officers to the rank of D. G."
&
2. "The required information pertains to guidelines, Bench marks etc regarding empanelment of 1974 batch IPS officers to the rank of Director General in the Govt. of India, my exclusion from the said panel and grounds thereof, proceedings of the meeting of the selection committee headed by the Cabinet Secretary and notings/ comments/ orders on the concerned files etc. The empanelment process of IPS officers is a public activity being performed 1 Emphasised by us to highlight remaining information sought 4 by the Ministry of Home Affairs2 , Govt. of India which is the cadre controlling authority for IPS Officers/ Department of Personnel and Training, Cabinet Secretariat and others High Offices/ Depts.
etc of the Govt. of India therefore, the required information can not be refused under this provision."
However, in his order of 20.2.09 Shri Rajiv Kumar, Jt. Secretary has directed, as follows:
"After carefully considering grounds of the appeal dated 10.12.2008 and orders of CPIO dated 19.11.2008 and examination of papers placed before me, I uphold the decision of the CPIO that the information sought is exempted from disclosure under section 8 (1) (h) and 8 (1) (j) of the RTI Act. However, the CPIO is further directed to furnish only the applicable guidelines on DGP/ IPS level empanelment."
In compliance with this order, CPIO Shri K. S. Achar, Director, Cabinet Secretariat has written the appellant Shri Sudhir Awasthi on 23.2.09 as follows:
"The First Appellate Authority has directed the undersigned to furnish a copy of the applicable guidelines on DGP/ IPS level empanelment. A copy of the relevant orders No. 1- 21023/26/2006-IPS. III dated 11.1.2007 issued by the Ministry of Home Affairs is enclosed herewith."
Appellant Shri Awasthi's plea before us in this case, in second appeal is as below:
"Shri Rajive Kumar, Jt. Secretary and 1st Appellate Authority, Cabinet Secretariat has disallowed my appeal and upheld the order of Shri Sunil Mishra, Director and CPIO, Cabinet Secretariat refusing to provide the required information to me on the grounds of exemption under section 8 (1) (h) and 8 (1) (j) of the RTI Act without giving any justification for the same hence this 2nd appeal to the Hon'ble Commission."
Appellant has then concluded his submission with the following prayer:
2Emphasised by us to focus argument in both points 5 "(i) Shri Sunil Mishra, Director & CPIO Cabinet Secretariat and Shri Rajive Kumar, Jt. Secretary and 1st Appellate Authority, Cabinet Secretariat may kindly be directed to provide the information requested by me.
(ii) Such other order as deemed suitable to uphold the Transparency in empanelment process of IPS Officers to the rank of Inspector General of Police/ Jt. Secretary and above in the Govt. of India."
The appeal was heard on 30.12.09 through videoconference. The following are present:
Appellant Shri Sudhir Awasthi Respondents Shri K. S. Achar, Director, Cabinet Secretariat Ms. Inderjeet Kaur, Director (Police) MHA Shri Rajinder Kumar, SO (IPS-IV), MHA Shri B. B. Bhardwaj, SO, Cabinet Sectt.
Shri Jai Prakash, US, DOPT Shri S. K. Mohanty, S.O. DOPT Appellant Shri Awasthi submitted that he had been provided information with regard to only questions 1 and partly 10 but not to any of the remaining questions. Even so far as the guidelines that he has received are concerned, he submitted that these are guidelines for deputation and not guidelines for empanelment.
Shri K. S. Achar, Director, Cabinet Secretariat submitted that on the issue of whether information held by Government in a service matter is protected on the issue under exemption provided u/s 8(1)(j), the Cabinet Secretariat has been guided by the following ruling of the Bombay High Court in Arun Vasantrao Betkekar vs. Department of Atomic Energy and ors.
"A Division Bench of this Court in Dr. Arvind Kumar Sharma vs. The Chief Vigilance Commissioner & Ors. 2009 (3) BCR 827 held as under:-
We may also notice that public interest litigation would be maintainable only to remedy the public wrong, 6 injury and not for redressal of private or other disputes not genuinely concerned with public interest and the matters covered under the private field would hardly be made subject matter of the public interest litigation. Furthermore, in relation to service matters the concept of public interest litigation cannot be invoked. 3 The Supreme Court in the case of Dattaraj Nathuji Thaware v. State of Maharashtra & Ors., (2005)1 SCC 590. Following the case of Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, (1987)7 SCC 273, held that in service matter public interest litigation should not be entertained." The Petitioner also relied upon the judgment of the Supreme Court in Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union of India Ors., AIR 1981 SC 344 to contend that the Petitioner has a deeper concern in the matter and being a member of a social organization/body, the present writ petition would be maintainable. The Petitioner can hardly derive any benefit as on facts, this case is of no help to the Petitioner."
He further submitted that the Commission's decision ordering disclosure in the case of Shri Arvind Kejariwal vs. DoPT & Cabinet Secretariat, presumably file Nos.CIC/MA/A/2006/00204, 207 & 208 in which a Full Bench of this Commission had directed that "The Commission, therefore, directs the DoPT and the Cabinet Secretariat to allow inspection of 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 specified by the Appellant after inspection;" is now before the High Court of Delhi and is under stay. Shri Achar further clarified that so far as IPS Officers are concerned, their promotion is made in the State and the process of the empanelment at the Centre is only a process for adjusting them on deputation at the level of Government of India. Hence guidelines provided by the Cabinet Secretariat are in fact definitive also in terms of empanelment.
3Emphasised by us 7 DECISION NOTICE The arguments of respondent Shri K. S. Achar, Director, Cabinet Secretariat has informed us of the reliance that Cabinet Secretariat placed on the ruling of the Bombay High Court in the interpretation of sec. 8(1)(j). As may be seen from the quotation that we have cited from para 11 of that ruling, it pertains to an examination of the issue of Public Interest Litigation and has, therefore, relied upon a number of decisions predating the RTI Act, 2005. On the other hand, we now have an extensive examination of the application of exemption u/s 8(1)(j) from the High Court of Delhi in Writ Petition (Civil) Nos. 8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007, 7930/2009 & 3607 of 2007, in which Hon'ble Mr. Justice Sanjiv Khanna has in a decision of far reaching consequence, and which we therefore quote in extenso, as follows:
"Unwarranted invasion of privacy of any individual is protected in public interest, but gives way when larger public interest warrants disclosure. This necessarily has to be done on case-to-case basis taking into consideration many factors having regard to the circumstances of each case.
29. Referring to these factors relevant for determining larger public interest in R.K. Jain versus Union of India (1993) 4 SCC 120 it was observed: -
"54. The factors to decide the public interest immunity would include (a) where the contents of the documents are relied upon, the interests affected by their disclosure; (b) where the class of documents is invoked, whether the public interest immunity for the class is said to protect; (c) the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents themselves came into existence; (d) the seriousness of the issues in relation to which production is sought;
(e) the likelihood that production of the documents will affect the outcome of the case; (f) the likelihood of injustice if the documents are not produced.
55. When public interest immunity against disclosure of the State documents in the transaction of business by the Council of Ministers of the affairs of State is 8 made, in the clash of those interests, it is the right and duty of the court to weigh the balance in the scales that harm shall not be done to the nation or the public service and equally to the administration of justice.
Each case must be considered on its backdrop. The President has no implied authority under the Constitution to withhold the documents. On the other hand it is his solemn constitutional duty to act in aid of the court to effectuate judicial review. The Cabinet as a narrow centre of the national affairs must be in possession of all relevant information, which is secret or confidential. At the cost of repetition it is reiterated that information relating to national security, diplomatic relations, internal security of sensitive diplomatic correspondence per se are class documents and that public interest demands total immunity from disclosure. Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc. The maxim salus populi est suprema lex, which means that regard to public welfare is the highest law, is the basic postulate for this immunity. Political decisions like declaration of emergency under Article 356 are not open to judicial review but it is for the electorate at the polls to decide the executive wisdom. In other areas every communication, which preceded from one officer of the State to another or the officers inter se, does not necessarily per se relate to the affairs of the State. Whether they so relate has got to be determined by reference to the nature of the consideration the level at which it was considered, the contents of the document of class to which it relates to and their indelible impact on public administration or public service and administration of justice itself. Article 74(2) is not a total bar for production of the records. Only the actual advice tendered by the Minister or Council of Ministers to the President and the question whether any, and if so, what advice was tendered by the Minister or Council of Ministers to the President, shall not be enquired into by the court. In other words the bar of judicial review is confined to the factum of advice, its extent, ambit and scope but not the record i.e. the material on which the advice is founded. In S.P.Gupta case this Court held that only the actual advice tendered to the President is immune from enquiry and the immunity does not extend to other documents or records, which form part of the advice, tendered to the President.
930. In S.P. Gupta (supra), the Supreme Court held that democratic form of Government necessarily requires accountability, which is possible only when there is openness, transparency and knowledge. Greater exposure about functioning of the Government ensures better and more efficient administration, promotes and encourages honesty and discourages corruption, misuse or abuse of authority. Transparency is a powerful safeguard against political and administrative aberrations and antithesis of inefficiency resulting from a totalitarian government, which maintains secrecy and denies information. Reference was again made to Sodhi Sukhdev Singh (supra) and it was observed that there was no conflict between public interest and non-disclosure' and private interest and disclosure' rather Sections 123 and 162 of the Evidence Act, 1872 balances public interest in fair administration of justice, when it comes into conflict with public interest sought to be protected by non-disclosure and in such situations the court balances these two aspects of public interest and decides which aspect predominates. It was held that the State or the Government can object to disclosure of a document on the ground of greater public interest as it relates to affairs of the State but the courts are competent and indeed bound to hold a preliminary enquiry and determine the validity of the objection to its production and this necessarily involves an enquiry into the question whether the evidence relates to affairs of the State. Where a document does not relate to affairs of the State or its disclosure is in public interest, for the administration of justice, the objection to disclosure of such document can be rejected. It was observed:
"The court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document."
31. A statement or defence to non-disclosure is not binding on the courts and the courts retain the power to have a prima facie enquiry and balance the two public interest and affairs of the State. The same is equally true and applies to CIC, who can examine the documents/information to 10 decide the question of larger public interest. 4 Section 18(4) of the RTI Act empowers CIC to examine any record under the control of a public authority, while inquiring into a complaint. The said power and right cannot be denied to CIC when they decide an appeal. Section 18 is wider and broader, yet jurisdiction under section 18 and 19 of the RTI Act is not watertight and in some areas overlap.
32. The Supreme Court in S.P Gupta's case considered the question whether there may be classes of documents, which the public interest requires not to be disclosed, or which should in absolute terms be regarded as immune from disclosure. In other words, we may examine the contention whether there can be class of documents which can be granted immunity from disclosure not because of their contents but because of their class to which they belong. Learned Additional Solicitor General in this regard made pointed reference to the following observations in S.P.Gupta (supra) :
"69. The claim put forward by the learned Solicitor General on behalf of the Union of India is that these documents are entitled to immunity from disclosure because they belong to a class of documents which it would be against national interest or the interest of the judiciary to disclose........ This class includes cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and dispatches from ambassadors abroad (vide : Conway v. Rimmer, 1968 AC 910 at pp. 952, 973, 979, 987 and 993 and Reg v. Lewes J.K. Ex parte Home Secy., 1973 AC 388 at p.412). Papers brought into existence for the purpose of preparing a submission to Cabinet (vide Commonwealth Lanyon property Ltd v.
Commonwealth, 129 LR 650) and indeed any documents which relate to the framing of government policy at a high level (vide: Re Grosvenor Hotel, London). It would seem that according to the decision in Sodhi Sukhdev Singh's case (AIR 1961 SC 493) (supra) this class may also extend to ―notes and minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached in the course of determination of questions of policy. Lord Reid in Conway v. Rimmer (supra) at page 952 proceeded also to include in this class ―all documents 4 Emphasis added by us 11 concerned with policy-making within departments including, it may be minutes and the like by quite junior officials and correspondence with outside bodies . It is this case to consider what documents legitimately belong to this class so as to be entitled to immunity from disclosure, irrespective of what they contain. But it does appear that cabinet papers, minutes of discussions of heads of departments and high level documents relating to the inner working of the government machine or concerned with the framing of government policies belong to this class which in the public interest must be regarded as protected against disclosure."
33. The aforesaid observations have to be read along with the ratio laid down by the Supreme Court in subsequent paras of the said judgment. In para 71, it was observed that the object of granting immunity to documents of this kind is to ensure proper working of the Government and not to protect Ministers or other government servants from criticism, however intemperate and unfairly biased they may be. It was further observed that this reasoning can have little validity in democratic society, which believes in open government. 5 It was accordingly observed as under:-
The reasons given for protection the secrecy of government at the level of policy making are two. The first is the need for candour in the advice offered to Minister; the second is that disclosure would create or fan ill-informed or captious public or political criticism.' Lord Reid in Conway v. Rimmer thought the second the most important reason'. Indeed, he was inclined to discount the candour argument.
I think both reasons are factors legitimately to be put into the balance, which has to be struck between the public interest in the proper functioning of the public service (i.e. the executive arm of the government) and the public interest in the administration of justice. Sometimes the public service reasons will be decisive of the issue; but they should never prevent the court from weighing them against the injury, which would be suffered in the administration of justice if the document was not to be disclosed.5
Emphasis ours 12 The same view was expressed by Gibbs A.C.J. in Sankey v. Whitlam (supra) where the learned acting Chief Justice said:
"I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with special care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned."
There is nothing sacrosanct about the immunity, which is granted to documents because they belong to a certain class 6 . Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task, which has to be performed by the Court in all cases."
34. Possibly the only class of documents, which are granted immunity from disclosure, is those mentioned under Article 74(2) of the Constitution. These are documents or information which are granted immunity from disclosure not because of their contents but because of the class to which they belong. Other documents and information which do not fall under Article 74(2) of the Constitution cannot be held back on the ground that they belong to a particular class which is granted absolute protection against disclosure. All other documents/information is not granted absolute or total 6 Emphasis ours 13 immunity. Protection from disclosure is decided by balancing the two competing aspects of public interest i.e. when disclosure would cause injury or unwarranted invasion of privacy and on the other hand if non-disclosure would throttle the administration of justice or in this case, the public interest in disclosure of information. In such cases, the Court/CIC has to decide, which of the two public interests pre-dominates.
35. Same view has been taken by the Supreme Court in its subsequent judgment in the case of R.K. Jain (supra). It was observed as under:-
"43. It would, therefore, be concluded that it would be going too far to lay down that no document in any particular class or one of the categories of cabinet papers or decisions or contents thereof should never, in any circumstances, be ordered to be produced. Lord Keith in Burmah Oil case considered that it would be going too far to lay down a total protection to Cabinet minutes. The learned Law Lord at p.1134 stated that ―something must turn upon the subject- matter, the persons who dealt with it, and the manner in which they did so. Insofar as a matter of government policy is concerned, it may be relevant to know the extent to which the policy remains unfulfilled, so that its success might be prejudiced by disclosure of the considerations which led to it. In that context the time element enters into the equation. Details of an affair which is stale and no longer of topical significance might be capable of disclosure without risk of damage to the public interest..... The nature of the litigation and the apparent importance to it of the documents in question may in extreme cases demand production even of the most sensitive communications to the highest level . Lord Scarman also objected to total immunity to Cabinet documents on the plea of candour. In Air Canada case Lord Fraser lifted Cabinet minutes from the total immunity to disclose, although same were ―entitled to a high degree of protection....
44. x x x x x
45. In a clash of public interest that harm shall be done to the nation or the public service by disclosure of certain documents and the administration of justice shall not be frustrated by withholding the document which must be produced if justice is to be done, it is the courts duty to balance the competing interests by weighing in scales, the effect of disclosure on the 14 public interest or injury to administration of justice, which would do greater harm. Some of the important considerations in the balancing act are thus: ―in the interest of national security some information which is so secret that it cannot be disclosed except to a very few for instance the State or its own spies or agents just as other countries have. Their very lives may be endangered if there is the slightest hint of what they are doing. In R. v. Secretary of State for Home Affairs, ex p Hosenball in the interest of national security Lord Denning, M.R. did not permit disclosure of the information furnished by the security service to the Home Secretary holding it highly confidential. The public interest in the security of the realm was held so great that the sources of the information must not be disclosed nor should the nature of information itself be disclosed."
36. Reference in this regard may also be made to the judgment of the Supreme Court in Dinesh Trivedi M.P. and others versus U.O.I (1997) 4 SCC 306 and Peoples' Union for Civil Liberties versus Union of India (2004) 2 SCC
476.
37. Considerable emphasis and arguments were made on the question of ‗candour argument' and the observations of the Supreme Court in the case of S.P. Gupta (supra). It will be incorrect to state that candour argument has been wholly rejected or wholly accepted in the said case. The ratio has been expressed in the following words:
"70. ..... We agree with these learned Judges that the need for candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class, but as pointed out by Gibbs A.C.J. in Sankey v. Whitlam (supra), it would not be altogether unreal to suppose ―that in some matters at least communications between ministers and servants of the Grown may be more frank and candid if these concerned believe that they are protected from disclosure because not all Crown servants can be expected to be made of ―sterner stuff . The need for candour and frankness must therefore certainly be regarded as a factor to be taken into account in determining whether, on balance, the public interest lies in favour of disclosure or against it (vide : the observations of Lord Denning in Neilson v. Lougharre, (1981) 1 All ER at p. 835.15
71. There was also one other reason suggested by Lord Reid in Conway v. Rimmer for according protection against disclosure to documents belonging to this case: ―To my mind, said the learned Law Lord: ―the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of Government is difficult enough as it is, and no Government could contemplate with equanimity the inner workings of the Government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. But this reason does not commend itself to us. The object of granting immunity to documents of this kind is to ensure the proper working of the Government and not to protect the ministers and other Government servants from criticism however intemperate and unfairly based.
Moreover, this reason can have little validity in a democratic society which believes in an open Government. It is only through exposure of its functioning that a democratic Government can hope to win the trust of the people. If full information is made available to the people and every action of the Government is bona fide and actuated only by public interest, there need be no fear of ―ill-informed or captious public or political criticism . But at the same time it must be conceded that even in a democracy, Government at a high level cannot function without some degree of secrecy. No minister or senior public servant can effectively discharge the responsibility of his office if every document prepared to enable policies to be formulated was liable to be made public. It is therefore in the interest of the State and necessary for the proper functioning of the public service that some protection be afforded by law to documents belonging to this class. What is the measure of this protection is a matter which we shall immediately proceed to discuss."
38. This becomes clear when we examine the test prescribed by the Supreme Court on how to determine which aspect of public interest predominates. In other words, whether public interest requires disclosure and outweighs the public interest which denies access. Reference was made with approval to a passage from the judgment of Lord Reid in Conway vs. Rimmer 1968 AC 910. The Court thereafter elucidated:-
16"72. .....The court has to decide which aspect of the public interest predominates or in other words, whether the public interest which requires that the document should not be produced, outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies. If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its non- disclosure, the could would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class.
39. Again reference was made to the following observations of Lord Scarman in Burmah Oil versus Bank of England 1979-3 All ER 700:
"But, is the secrecy of the inner workings of the government at the level of policy making are two. The first is the need for candour in the advice offered to Ministers; the second is that disclosure ‗would create or fan ill-informed or captious public or political criticism.' Lord Reid in Conway v. Rimmer thought the second ‗the most important reason'. Indeed, he was inclined to discount the candour argument."
40. However, the said observations have to be read and understood in the context and the year in which they were made. In the S.P Gupta's case, the Supreme Court observed that interpretation of every statutory provision must keep pace with the changing concepts and values and to the extent the language permits or rather does not prohibit sufficient adjustments to judicial interpretations in accord with the requirements of fast changing society which is indicating rapid social and economic transformation. The language of the provision is not a static vehicle of ideas and as institutional development and democratic structures gain 17 strength, a more liberal approach may only be in larger public interest. In this regard, reference can be made to the factors that have to be taken into consideration to decide public interest immunity as quoted above from R.K. Jain case (supra).
41. The proviso below Section 8(1)(j) of the RTI Act was subject of arguments. The said proviso was considered by the Bombay High Court in Surup Singh Hryanaik versus State of Maharashtra AIR 2007 Bom. 121 and it was held that it is proviso to the said sub-section and not to the entire Section 8(1). The punctuation marks support the said interpretation of Bombay High Court. On a careful reading of Section 8(1), it becomes clear that the exemptions contained in the clauses (a) to (i) end with a semi colon ―;" after each such clause which indicate that they are independent clauses. Substantive sub section Clause (j) however, ends with a colon ":" followed by the proviso. Immediately following the colon mark is the proviso in question which ends with a full stop".". In Principles of Statutory Interpretation, 11th Ed. 2008 (at page No. 169) G.P Singh, has noted, "If a statute in question is found to be carefully punctuated, punctuation, though a minor element, may be resorted to for purposes of construction." Punctuation marks can in some cases serve as a useful guide and can be resorted to for interpreting a statute.
42. Referring to the purport of the proviso in Surup Singh (supra), the Bombay High Court has held that information normally which cannot be denied to Parliament or State Legislature should not be withheld or denied.
43. A proviso can be enacted by the legislature to serve several purposes. In Sundaram Pillai versus Patte Birman (1985) 1 SCC 591 the scope and purpose of a proviso and an explanation has been examined in detail. Normally, a proviso is meant to be an exception to something in the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. A proviso cannot be torn apart from the main enactment nor can it be used to qualify and set at naught, the object of the main enactment. Sarthi on "Interpretation of Statutes", referred to in the said judgment, states that a proviso is subordinate to the main section and one of the principles which can be applied in a given case is that a proviso would not enlarge an enactment except for compelling reasons. It is unusual to import legislation from a proviso into the body of the statute. But in exceptional cases a proviso in itself may amount to a substantive provision. The proviso in the 18 present cases is a guiding factor and not a substantive provision which overrides Section 8(1)(j) of the RTI Act. It does not undo or rewrite Section 8(1)(j) of the RTI Act and does not itself create any new right. The purpose is only to clarify that while deciding the question of larger public interest i.e., the question of balance between ‗public interest in form of right to privacy' and ‗public interest in access to information' is to be balanced."
On this basis learned Sanjiv Khanna J. has in two cases, namely WP (Civil) No. 9914/2009 and W.P. (Civil) No. 3607/2007 has held as follows:
"W.P. (Civil) No. 9914 of 2009Passage of time since the creation of information may have an important bearing on the balancing of interest under sec. 8(1)(j) of the RTI Act. The general rule is that maintaining exemption under the said clause diminishes with passage of time. The test of larger public interest merits disclosure and not denial of the said information.W.P. (Civil) No. 3607 of 2007
Confidentiality has to be maintained in respect of these deliberations and furnishing of individual statements and comments may not be required in view of Sec. 8(1)(e) and (j) of the RTI Act. However, I need not decide this question in the present writ petition as the respondent No. 2 has not asked for copy of the deliberations and comments."
Shri Achar has no doubt submitted that the Commission's decision in the case of Shri Arvind Kejariwal vs. Cabinet Secretariat and Anr. has been stayed. However, a stay in making disclosure in that case cannot be deemed a stay in disclosure in all cases, particularly in light of the ruling above that "this necessarily has to be done on case-to-case basis taking into consideration many factors having regard to the circumstances of each case." This ruling also accepts the authority of the Central information Commission in ruling upon this issue highlighted by us above, stating that, like the courts, the Commission "can examine the documents/information to decide the question of larger public interest." We find however, that the decision challenged before us has failed to examine the question of disclosure in the resent case from that point of view, but in the hearing has simply sought to defend withholding the 19 information on a ruling that would, if applied universally, have the effect of classifying certain categories of documents while, as is affirmed from the highlighted portion of the ruling above, 'there is nothing sacrosanct about the immunity, which is granted to documents because they belong to a certain class.' For these reasons, and in light of the fact that PIO cannot decide this question and cannot pass an order under Section 8(2) of the RTI Act holding, inter alia, that information is covered by the exemption clauses under Section 8(1) of the RTI Act but public interest in disclosure overweighs and justifies disclosure, the present appeal is remanded back to Shri Rajeev Kumar, Jt. Secretary and Appellate Authority, Cabinet Secretariat who will re-examine the response given to Q. Nos. 4 to 7 & 10 of the application of Shri Sudhir Awasthi in light of the above ruling keeping in mind that any intent to protect government servants from criticism, however unjustified as a reasoning for withholding any information, can have little validity in a democratic society, which believes in open government, and provide the disclosable answers in accordance with records held by the Cabinet Secretariat in this regard, transferring the questions with regard to the information not so held to the concerned public authority for response. This exercise will be completed within ten working days of the date of receipt of this Decision Notice.
However, on the question of guidelines etc. laid down and followed during the process of empanelment in answer to Q. No. 2, 8 & 9, we have examined the relevant file of the Cabinet Secretariat which includes a note from Director, PMO, Political Section dated 16.7.08 addressed to the Cabinet Secretariat regarding revised guidelines proposed by Cabinet Secretary in 10.7.08 upon which Cabinet Secretary has noted as below:
"Please fix mtg. for empanelment of '74 batch according to old guidelines. 7 "7
Underlined by us for noting relevance 20 This would mean that the guidelines already provided to appellant Shri Sudhir Awasthi are the guidelines that were applied to empanelment in his case, however inadequate, appellant Shri Sudhir Awasthi may deem these guidelines to have been. The appeal is, therefore, allowed in part. There will be no cost.
Reserved in the hearing, this Decision is announced in open chambers on this fifth day of January 2010. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 5.1.2010 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 Shreyaskar) Joint Registrar 5.1.2010 21