Central Information Commission
Anjali Bhardwaj vs Department Of Personnel & Training on 15 February, 2021
Author: Saroj Punhani
Bench: Saroj Punhani
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DOP&T/C/2019/600143
Anjali Bhardwaj ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Ministry of Personnel, PG & Pensions,
Department of Personnel & Training,
North Block, New Delhi-110001 ... ितवादीगण /Respondent
Date of Hearing : 06/01/2021
Date of Interim Decision : 06/01/2021
Date of Final Decision : 12/02/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 23/07/2018
CPIO replied on : 24/10/2018
First appeal filed on : N.A.
First Appellate Authority order : N.A.
2nd Appeal/Complaint received : 04/01/2019
Information sought:
The Complainant filed RTI application dated 23.07.2018 seeking information through six points, including inter-alia;
1. Provide a copy of the RTI Amendment Bill, 2018.1
2. Provide reference number/file number of file or folder maintained by the DOPT on the issue of RTI Amendment Bill, 2018.
3. Complainant wants to inspect the whole file, including file notings, maintained by the DOPT on the issue of RTI Amendment Bill, 2018.
4. Provide the date on which the proposal to amend the RTI Act, 2005 through the RTI Amendment Bill 2018 was prepared by the DOPT.
5. As per the decision taken in the meeting of the Committee of Secretaries (CoS) held on 10th January, 2014 regarding the Pre-legislative Consultation Policy (PLCP), every Department/Ministry is required to proactively place in the public domain all proposed legislations for a minimum period of thirty days. Provide information (indicating the exact website address) where the RTI Amendment bill was proactively made available.
6. The Central Information Commission in its decision (CIC/SG/C/2010/000345 000400/8440) dated 7.7.2010, directed that a credible mechanism be put in place for proactive and timely disclosure of draft legislations in the public domain, as required under Section 4(1)(c) of the RTI Act, during the process of their formulation and before finalization. Provide information on procedure adopted to proactively disclose the RTI Amendment Bill in the public domain during its formulation.
The CPIO, vide letter dated 24.10.2018, denied information on point Nos. 1 to 6 under section 8(1)(i) of the RTI Act, 2005.Being dissatisfied, the Complainant filed a complaint to the Commission.
Grounds for the Complaint:
Feeling aggrieved and dissatisfied, Complainant approached the Commission with the instant complaint. Complainant requested to the Commission to impose penalty under section 20(1) of the RTI Act on the concerned CPIO.
Relevant Facts emerging during Hearing on 06.01.2021:
The following were present:-
Complainant:Present with Amrita Johri through intra-video conference. Respondent: Pawan Kumar, Under Secretary &CPIO, Bikesh Kumar Bernawal, SO(IR-II) and Inder Pal, ASO(IR-II) present through intra-video conference.
The Complainant stated that invoking of Section 8(1)(i) of the RTI Act to deny the information was mindless on the part of the CPIO and deemed it as a misuse of 2 the exemption clause and prayed for action against the CPIO.In support of her allegations, she submitted as under:
• The Bill was listed for tabling before the Rajya Sabha (as per the 'REVISED LIST OF BUSINESS' of the Rajya Sabha on 19.07.2018) which means the Cabinet had cleared the Bill for listing & introduction in the Parliament as on the date of filing of the RTI Application.
• Points 5 & 6 of the RTI related to the public authority's transparency obligations as per Pre-Legislative Consultation Policy and had no relevance to Section 8(1)(i) of the RTI Act.
• Points 2 & 4 of the RTI also sought generic information unrelated to Cabinet papers.
She further remarked that the CPIO should explain as to how was the disclosure of the file number of the relevant file; or the date of preparation of the RTI Amendment Bill, the website address where the proposed bill was made available or the procedure adopted for proactive disclosure of the bill would be exempt under Section 8(i) of the RTI Act. She furthermore pointed out that the instant case also highlights the violation of obligations of transparency under the Pre- LegislativeConsultation Policy (PLCP) by DoPT. In this regard, she elaborated thatin the year 2014, a Pre-legislative Consultation Policy wasadopted by the Government of India which mandatesthat all draft legislations (including subordinate legislation) be placed in thepublic domain for 30 days for inviting public comments and a summary ofcomments be made available on the concerned ministry's website prior tobeing sent for Cabinetapproval. However, a perusal of the website of theconcerned department i.e. the Department of Personnel and Training confirmsthat the public authority did not place the proposed legislation- The RTIAmendment Bill, 2018 in the public domain prior to it being sent for Cabinet approval. Therefore, the public authority has clearly violated its obligation ontransparency under the Pre-Legislative Consultation Policy by not placing thedraft of the amendment bill in the public domain. That, beinginformed about proposed legislations and being able to participate in theirformulation is a basic tenet in a democracy and the government is alsoobligated to ensure transparency and participation of people through the Pre- Legislative Consultation Policy. Therefore, clearly, the matter is of crucial publicinterest and importance and the government should have, in fact, proactivelydisclosed details of the proposed amendments to the RTI Act.3
She also referred to a decision dated 07.07.2010 of the Commission in File No. CIC/SG/C/2010/000345+000400/8440 wherein the Chief Secretary, GNCTD was directed to develop a credible mechanism in all departments for proactive and timely disclosure of draft legislations/ policies and amendments thereto or to existing laws/ policies in the public domain, as required under Section 4(1)(c) of the RTI Act, during the process of their formulation and before finalization. In light of the said decision, the Complainant requested this bench to issue similar directions to the Central Government in exercise of the powers vested in under Section 25 of the RTI Act to ensure transparency and probity in policy matters affecting the interests of the citizenry.
The CPIO expressed his regret that the then CPIO, Sanjay Kumar erroneously invoked Section 8(1)(i) of the RTI Act as it appears, he was hastily disposing of all the pending RTI Application at the time immediately upon assuming the charge of CPIO in October, 2018 itself. He further submitted that in the facts of the instant case, he would like to invoke Section 8(1)(c) of the RTI Act which provides for exemption from disclosure of such information which would amount to breach of privilege of Parliament as the RTI Amendment Bill was pending before the Parliament at the relevant time. He further submitted that as regards the Complainant's allegation of not complying with the Pre-Legislative Consultation Policy, the Government observed that the Bill entailed administrative action only and was not going to have any social or financial ramifications and therefore,it was not placed in the public domain. He furthermore submitted that the same was answered in response to a Starred Question in the Parliament Session on 12.12.2019. Lastly, he added that as such, the Complainant has inspected all the relevant records related to the averred Amendment Bill on 31.12.2019.
The Complainant argued that the Pre-Legislative Consultation Policy does not draw any distinction between legislations entailing administrative action or otherwise. She also objected to the introduction of a new exemption clause at the stage of the hearing and insisted that penalty should be imposed on the concerned CPIO for inappropriately denying the information sought for in the RTI Application.
Interim Decision on 06.01.2021 The Commission observes from a perusal of the facts on record that the Complainant has argued tenable grounds for challenging the reply of the CPIO in 4 terms of the applicability of Section 8(1)(i) of the RTI Act. Concededly, the square application of Section 8(1)(i) of the RTI Act to deny the information sought for in the RTI Application without even explaining the applicability of the said exemption clause amounts to an unreasonable conduct on the part of Sanjay Kumar, Under Secretary & the then CPIO. Moreover, in specific terms, the information sought for at points no. 2,4 ,5 & 6 were not in any way concerned with the exemption of Section 8(1)(i) of the RTI Act and should have been replied to in a point-wise manner explaining the availability or unavailability of the information sought for therein.
As for the exemption of Section 8(1)(c) of the RTI Act introduced by the present CPIO during the hearing and the objection of the Complainant to the same does not warrant determination of merits in the instant case, as the Complaint was filed specifically against the reply of the then CPIO for invoking Section 8(1)(i) of the RTI Act. The discussion around the applicability of other exemption clauses would have been relevant in the event that the scope for ordering disclosure of the information sought for was being determined.
Having observed as above, the pertinent action in the matter is with respect to the conduct of the then CPO in having caused obstruction to the right to information of the Complainant vis-à-vis the exemption of Section 8(1)(i) of the RTI Act. Now, there fore,the Commission directs Sanjay Kumar, Under Secretary & the then CPIO through the present CPIO to send his written submissions to the Commission to show-cause as to why action should not be initiated against him under Section 20(1) & (2) of the RTI Act for mindlessly denying the information sought for in the RTI Application, particularly, the information sought for at points no. 2,4 ,5 & 6 therein. The then CPIO is directed to incorporate in his written submissions a detailed rebuttal to each of the arguments of the Complainant as mentioned in the hearing proceedings and to justify the applicability of Section 8(1)(i) of the RTI Act for each point of the RTI Application. The said written submissions of Sanjay Kumar, Under Secretary & the then CPIO should reach the Commission within 15 days from the date of receipt of this order.
The present CPIO is directed to serve a copy of this order to Sanjay Kumar, Under Secretary & the then CPIO at his present address under due intimation to the Commission within 2 days from the date of receipt of this order.
5The decision of the Commission with respect to the Complainant's prayer for issue of recommendations to the Central Government under Section 25 of the RTI Act is reserved for consideration until the issue of final order in the matter.
The Complaint is reserved for final order.
Proceedings of the Final Decision:
The Commission has received the detailed written submissions dated 30.01.2021 of Sanjay Kumar, Under Secretary & the then CPIOwherefrom the relevant excerpts are reproduced hereunder for clarity:
3. The complainant raised the issue of Amendment Bill 2018 which was related to terms and conditions of Chief Information Commissioner and Information Commissioners in the Supreme Court during the hearings in WP No.436 of 2018 Anjali Bhardwaj Vs Union of India. The Supreme Court in its Judgement on 15.02.2019 in the case issued general directions (refers para 67(ii)) which provides that "Insofar as terms and conditions of appointment are concerned, no doubt, Section 13(5) of RTI Act states that the CIC and ICs shall be appointed on the same terms and conditions as applicable to the Chief Election Commissioner/Election Commissioner. At the same time, it would be also be appropriate if the said terms and conditions on which such appointments are to be made are specifically stipulated in the advertisement and put-on websites as well."
In pursuance of the directions, the terms and conditions had been specified in the next advertisement for the appointment of Information Commissioners in the Central Information Commission. But at the time of reply (24.10.2O18), the case in Supreme Court was sub-judice (Judgement in the case came on 15.02.2019).
4. It is humbly submitted that at the time of reply, the selection process for appointment of Chief Information Commissioner and Information Commissioners in Central Information Commission was also going on. The appointment of Information Commissioners in Central Information Commission is undertaken at 6 the highest level in the Government. Section 12(3) of the Right to Information Act provides that the Chief Information Commissioner and Information Commissioners shall be appointed by the President on the recommendation of a Committee consisting of (i) the Prime Minister, who shall be the Chairperson of the Committee
(ii) the Leader of Opposition in the LokSabha; and (iii) a Union Cabinet Minister to be nominated by the Prime Minister
6. PMO vide ID no. 49304441PMO/2018-E&S-2 dated 22.10.2018 have conveyed approval to go ahead with the advertisement for the post of Chief Information Commissioner. They have also stated that the constitution of Search Committee and nomination of the Union Minister on the Selection Committee is same as conveyed vide PMO ID No - 48770641PMO12018-ES-II dated 13.08.2018.
8. The process of selection of Chief Information Commissioner and Information Commissioners was going on at the time of reply. The developments in WP No.436 of 2018 and the Right to Information (Amendment) Bill 2018, which was related to terms and conditions of Chief Information Commissioner and Information Commissioners was under consideration of the above-mentioned Search Committee of Secretaries chaired by Cabinet Secretary in its meeting on 28.09.2018 and 24.11.2018, which was constituted by the Prime Minister for the selection of Chief Information Commissioner and Information Commissioners. It substantiates that since the developments in WP No.436 of 2018 and the Right to Information (Amendment) Bill 2018 was under consideration of the Search Committee of Secretaries chaired by the Cabinet Secretary and findings of this Search Committee had to be placed before the Committee chair by the Prime Minister consisting of Leader of Opposition and the Union Minister nominated by the Prime Minister, the exemption from disclosure of information was sought under Section 8(1)(i) of the Right to Information Act which provides that "8(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen
(i) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
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 7 Provided further that those matters which come under the exemptions specified in this section shall not be disclosed."
The Section 8(1)(i) of the Right to Information Act provides exemption of disclosure not only in respect of Cabinet papers but also includes record of deliberations of Secretaries and other officers, The developments in WP No.436 of 2018 which inter-alia include the Right to Information (Amendment) Bill 2018 was under consideration of the Search Committee of Secretaries chaired by the Cabinet Secretary and findings of this Search Committee had to be placed before the Committee chair by the Prime Minister consisting of Leader of Opposition and the Union Minister nominated by the Prime Minister was under consideration of the Search Committee of Secretaries since it pertains to terms and conditions of the Information Commissioners, CPIO in the case, in view of the sensitivity of the case and his interpretation of the provisions of RTI Act without any malafide intention discharged his duty in the public interest and sought exemption under Section 8(1)(i) of the Right to Information Act from disclosure of Information.
9. Even if we accept the Complainant's plea that the Bill was listed for tabling before the Rajya Sabha on 19.07.2018 (refers bullet point at the bottom of page 2 of the Interim Order) which is correct that the Bill 2018 was listed for Business in Rajya Sabha on 19.07.2018 and since then it was under consideration of the Parliament and was not passed by the Parliament at that time of reply given by CPIO (has not reached the finality), the disclosure of the information at this stage would cause a breach of privilege of Parliament and exemption from disclosure of information in this regard has also been provided in Section 8 of the RTI Act.
10. Later the Complainant visited DoPT and the CPIO for inspection of the file relating to Amendment to RTI Act, 2005........................ The Complainant, while inspecting the file relating to Amendment of RTI Act in DoPT, suggested to CPIO that this file should be uploaded on the website of the Department and on her suggestion, I being the CPIO took up this initiative and after taking the approval of the Competent Authority uploaded the file and duly informed the Complainant through mail.
12. I joined DoPT on 15.10.2018, the RTI Amendment Bill 2018 was sent to Rajya Sabha and listed for business in Rajya Sabha 19.07.2018, i.e. before my joining. As per RTI Act and the guidelines issued by DoPT, CPIO is required to supply information which he holds at the time of reply. Since I joined this 8 Department on 15.10.2018 and new to the Department at the time of reply i.e., 24.10.2018, I checked the file relating to RTI Amendment Bill 2018, no information relating to Pre-Legislative Consultation Policy was available in the file.
13. Kind attention in this regard is invited to the Order of Central Information Commission dated 22.12.2020 vide Complaint No.CIC/DOEAF/C/2019/638410 (Paras 10 & 11) which refers to Hon'ble High Court of Delhi in the decision of Col. Rajendra Singh Vs. Central Information Commission & Ors in WP(C ) No.5469 of 2008 dated 20.03.2009 which provides that "Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely. ... The preceding discussion shows that at least the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably holding it"
14. CPIO in the case, in view of the sensitivity of the case and his interpretation of the provisions of RTI Act without any malafide intention discharged his duty in the public interest."
Having perused the submissions of the CPIO, the Commission observes that the CPIO has sought to overlap the issue around the RTI Amendment Bill with that of the pendency of the process of selection of the Information Commissioners. While both these matters were related to the RTI Act itself, but essentially, they are separate issues. The CPIO has displayed gross non-application of mind in having failed to differentiate between two completely separate issues and even if there was any merit in his understanding for invoking Section 8(1)(i) of the RTI Act in the matter, fact remains that the information sought for at points no.2,4, 5 & 6 of the RTI Application could not have been denied under the said exemption. This blanket denial of the information is irksome to note and is indicative of an evasive approach of the said CPIO in dealing with the instant RTI Application.
Nonetheless, the Commission based on the reasons conveyed by the CPIO, is of the considered opinion that no malafide or deliberate intention can be accorded to him for having held the belief that Section 8(1)(i) of the RTI Act was attracted in the matter as he appears to have deemed the process of selection of the 9 Information Commissioners ancillary to the Right to Information Amendment Bill, 2018.
In view of the foregoing observations, the Commission is not inclined to proceed with penal or disciplinary action in the matter but at the same time severe admonition is recorded for Sanjay Kumar, Under Secretary & the then CPIO for not having perused the RTI Application carefully and for mechanically denying all of the information under Section 8(1)(i) of the RTI Act. Since there is no material on record to suggest that the RTI Amendment Bill was pending before the Council of Ministers or the Committee of Secretaries as on the date of the RTI Application, it is apparent that invocation of Section 8(1)(i) of the RTI Act was extraneous in the matter.
Sanjay Kumar, Under Secretary & the then CPIO is hereby warned to exercise due diligence in future and that a cogent reply is provided to the RTI Applications.
The Complaint is disposed of accordingly.
Saroj Punhani(सरोजपुनहािन) Information Commissioner (सू सूचनाआयु ) Authenticated true copy (अिभ मािणतस"यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 10