Central Information Commission
Shri R. C. Gupta vs Dep’T. Of Personnel & Training (Dopt) on 14 December, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01229 dated 10.7.2008
Right to Information Act 2005 - Section 19
Appellant - Shri R. C. Gupta
Respondent - Dep't. of Personnel & Training (DoPT)
Decision announced : 14.12.2009
Facts:
By an application of 10.1.06 Shri R. C. Gupta of Asian Games Village Complex, New Delhi applied to the CPIO, DOPT seeking the following information:
"I request you to provide me with the certified copies of papers / documents / notings in respect of the processing of the panel of the year 2001 during the period from January to March, 2005 for appointment to the post of Director (Commercial & Marketing) in ITDC."
This was followed by another application dated 16.1.06 in which the information sought from Director (ACC) & CPIO was as follows:
"Apart from certified copies of papers / documents / notings in respect of the processing of the panel of the year 2001 for the above post during the period from January to March, 2005, you are requested to provide in particular copy of Note F. No. 16(10)EO/02/-(ACC) forwarded by Secretary (ACC) to ACC sometimes in February 2005.
As the matter is urgent, I shall be grateful, if you would kindly expedite providing me with the said documents / papers / notings."
A joint response dated 17.1.06 was received to both these requests from CPIO Shri Alok Kumar, Director (ACC), DOPT refusing the information as follows:
"Since, the information sought by you ( i.e. DOPT records), which are essentially part of the papers put up to ACC from this Department falls in the category exempted under Sec. 8(1)(i), as mentioned above, it may not be possible for the undersigned to accede to your request."1
Appellant Shri Gupta then moved a third request on 3.10.07 before Shri S. K. Ahluwalia, US (ACC), DOPT seeking the following information:
"1. Copy of minutes of the selection proceedings held by the PESB on 9.3.1998, 13.7.2001 and 25.10.2005 for the post of Director (Commercial & Marketing) in ITDC.
2. Correspondence relating to the delay in processing the appointment of R. C. Gupta to the said post despite of his position being No. 1 on the select panel in the interviews held by PESB on 13.7.2001, due approval of the then Minister and CVC clearance.
3. Correspondence received from the Ministry of Tourism, Govt. of India, for scrapping the Panel of 13.7.2001.
4. Copy of Note vide F. No. 16(10)EO/02-(ACC) initiated by the DOPT in February, 2005 in connection with the Panel of 13.7.2001."
To this appellant Shri Gupta received the following response from CPIO Shri S. K. Ahluwalia US dated 10.10.07 :
"Regarding Part (4) of the information sought by you, the same is denied as information / records sought cannot be furnished as they are exempted from disclosure under Sec. 8(1)(i) of RTI Act 2005. Therefore, IPO No. 59E 144383 of Rs. 10/- is returned herewith. Please acknowledge its receipt.
Insofar as part (1) and (2) & (3) of your application are concerned, I am forwarding a copy of your application to the concerned CPIOs in the Ministry of Tourism and the PESB under Sec. 6(3)(ii) of the RTI Act 2005 for necessary action."
Shri Gupta then moved appeal before Shri Alok Kumar, Director (ACC) on 17.10.07 pleading as follows:
"As I understand, the subject matter for which copies were sought vide Para (4) of my letter dated 3.10.2007, has since been complete and hence copies can be given in terms of the explanatory notes appended under Sec. 8(1)(i), as above. Reference is also invited to Sec. 10(1) of the RTI Act 2005, relevant portions of which state as under:
" . . .Access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information."2
Upon this appellant Shri Gupta received a detailed response dated 31.12.07 summarized in the forwarding letter, as follows:
"Your appeal in the above matter is rejected. The detailed order is annexed herewith."
The thoughtful details in the order of Director Shri Prabhat, Appellate Authority questioned the relationship between Cabinet papers and record of deliberations of the Council of Ministers, as below:
"Obviously, "Cabinet papers" have a wider meaning in the Act. It includes all the papers pertaining to deliberations of the various Committees of the Cabinet, apart from including the papers pertaining to "Records of deliberations of the Council of Ministers", "Records of deliberations of the Secretaries" and "Records of deliberations of other officers". "Decisions of the Council of Ministers" and "material on the basis of which the decisions were taken" are a just a sub set of the larger set of documents encompassed under the larger term "Cabinet Papers".
Out of these types of documents - only one set of documents is mandated to be made public after "the decision has been taken, and the matter is complete, or over". The use of the term "Shall be made public", in the Act, obviously makes it a duty for the Public Authorities to make public the "decision of the Council of Ministers"
and "material on the basis of which the decisions were taken". But this stipulation (making them mandatorily public) is attracted, specifically, only in cases of "Decision of Council of Ministers" and definitely, not in respect of any other class of "Cabinet Papers".
The papers (pertaining to Shri R.C. Gupta) being held by the DOPT's CPIO Shri S. K. Ahluwalia, Under Secretary are essentially the papers pertaining to the deliberations of the "Appointments Committee of the Cabinet", they fall under the definition of "Cabinet Papers". They cannot be treated as "materials" for decision of "Council of Ministers" (as envisaged and understood under proviso to Sec. 8(1)(i) of the RTI Act 2005). As already brought out earlier, as far as "Cabinet papers" are concerned, it is a separate class of papers, distinct from "material on the basis of which decision of Council of Ministers are taken" and cannot be made public even after the decisions have been taken and the matter is complete or over. This is because of the simple reason that the enabling proviso under Sec. 8 talks only about the "decisions of the Council of Ministers". Hence, the proviso, under sec. 8(1)(i), cannot travel beyond the legislative intent as reflected in the main Sec. 8(1)(i) 3 and the proviso cannot be read to enable disclosure of all class of the Cabinet Papers.
In order to make the aforesaid postulate amply clear, once has to bear in mind, the clear distinction between the term "Council of Ministers" and the term "Cabinet". Whereas the "Council of Minister" is a creature (Article 74) of the Constitution of India, the "Cabinet" is a creature of the rule-making power (Article 77(3)) of the President of India. This rule making power (for conduct of the Government business) of the President of India in his supreme power, in his capacity as the supreme executive of India. In view of the fact that the 'separation of powers" is one of the fundamental feature of our Constitution, these rules, promulgated by the President of India, for regulation of conduct of Government's business (Transaction of business and allocation of business) cannot be fettered by any act or by any Judicial decision of any Court, Commission, Tribunal etc. Since ACC is a product of the rules framed under Article 77(3) of the Constitution of India, its business (deliberations including, and whether they are to be made public) are not subject matter of the decisions of any other authority other than the President of India himself.
Therefore, unless these rules framed under Article 77(3) themselves, provide for disclosure of information pertaining to the working of the cabinet and its committees, no disclosure can be made pertaining to them, under the RTI Act. Therefore, the RTI has rightly provided for non-disclosure of the information pertaining to "Cabinet Papers."
Shri R. C. Gupta has then moved his second appeal before us with the following prayer :
"denial of information to me would be a denial of fair play and justice. Therefore, it is requested that Under Secretary and CPIO, DOPT, Govt. of India be directed to provide me with a copy of the note vide F. No. 16(10)/EO/02-ACC initiated by DOPT in February, 2005 along with the notings thereon in connection with panel of Director (Commercial & Marketing) ITDC of 13.7.2001 which will enable me to strengthen by arguments in the sub judice matter."
The appeal was heard on 14.12.09. The following are present :
Respondents Shri Prabhat, Dir. DOPT Shri Deepak Israni, Under Secy.4
Although appellant Sh. R. C. Gupta had been informed by Notice dated 27.11.09 regarding the hearing he has nevertheless opted not to be present.
DECISION NOTICE 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 th and the Civil Services. The 44 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 th 44 Amendment, reads as under: -5
"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:
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 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 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. 6 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:
"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.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 14.12.2009 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 14.12.2009 1 This is a Writ against our Decision Notice cited 2 Underlined by us for emphasis 7