The
Hans India: Hayderabad: Tuesday, 27 January 2015.
Within the
proviso of the Section 8 (1)(i) of the RTI Act, there is a condition which says
information could be withheld until the matter “is complete or over.’ The
dispute is about interpretation of this phrase. What does “complete or over”
mean? Does it mean “until the NJAC is constituted by the cabinet” about which
it should be secret?
The RTI law
is also called sunshine legislation. In US, they call the government in
sunshine, meaning transparency. Among
three estates, two function openly judiciary and legislature. While every trial or appeal is a public
hearing, where anybody can attend subject to space and security, parliamentary
proceedings are either open or telecast live.
Though there
is possibility of certain issues being ‘confidential,’ most of the functioning
of two estates is ‘open’. Still there are two safeguards for these two Legislature has power to punish for breach of privilege, while the judiciary
can punish for its contempt. Both have ‘special powers’ to snub the ordinary
man for his comments against them.
Similarly,
the executive is armed with ‘protection to official secrecy,’ and the law
punishes for revelation of secrecy. Except what they want to tell, everything
could be secrecy, or every paper could be privileged. There were a very few cases where persons were
punished for revealing secret documents. It is a drastic power that is
unfortunately used to guard corruption and irregularities. The administration
suffered in general because the indecision, indifference, lethargy and redtape
are protected by this ‘cover.’
The Right to
Information Act in 2005 opened up this cover; the rule of secrecy became an
exception. Public information now cannot be hidden. It is a statutory duty to
bring out that, in spite of the “Official Secrets Act” being in place without
any dilution. In this context, the question
is: Is cabinet note a secret? Senior
Advocate S N Shukla sought a Union Cabinet note and details about its decision
to establish National Judicial Appointment Commission (NJAC). The department of
justice refused to provide the information, staing that it was cabinet secret
and was exempted under the Section 8 (1)(i) of the RTI Act.
The RTI Act
has created access right and listed out exceptions. One such exception is
regarding cabinet papers. As per the 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.
The Section
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 public after the decision has been taken, and the matter is
complete, or over.
While tje
appellant claims benefit of the proviso to that section, the Public Information
Officer (PIO) of the department of justice said that it cannot be given until
“the matter is complete or over.” If the Cabinet has not decided, the RTI says
that information cannot be disclosed but when the decision was over exeption
does not operate as proviso.
But within
the proviso, there is a condition which says information could be withheld
until the matter “is complete or over.’ The dispute is about interpretation of
this phrase. What does “complete or over” mean? Does it mean “until the NJAC is
constituted by the cabinet” about which it should be secret? The appellant
argued that the moment Bill is passed by Parliament, it is complete.
The intial
note on amendments to the Constitution for appointment of judges and for
establishment of the NJAC was defered by the Cabinet and withdrawn in 2013. A
revised note approved on 02.08.2013 by the Cabinet says the following :
I.
Amendments to Article 124, 217, 222 and 231 and insertion
of Article 124 A in Chapter IV, Part V of the Constitution for the creation of
Judicial Appointments Commission.
II.
Formation of Judicial Appointments Commission as per the
details in the draft Judicial Appointments Commission Bill, 2013.
That the
Cabinet at its meeting held on 02.08.2013 approved the proposal for the establishment of the NJAC is evident.
Accordingly, two Bills were proposed for the introduction in the Rajya Sabha namely
the Constitution (120th Amendment) Bill, 2013, and Judicial Appointments
Commission Bill, 2013. The Constitution (120th Amendment) Bill was considered
and passed by the Rajya Sabha as Constitution (99th Amendment) Bill on 05.09.2013.
The JAC Bill
was referred to the Parliamentaty Standing Committee, which submitted its
report on 09.12.2013. The department of justice explained that Cabinet decision
was not complete as it was put to public consultation, with consultation
meetings at different cities in country which necessitated reconsideration. The
new government revised this Bill which was passed by the Parliament.
The appellant
sought nothing about new form of bill but has every right to know the notings
of the bill as soon as the bill was finally okayed by the cabinet as per the
judgment of Delhi High Court in UOI Vs
CIC [W.P(c) No. 8396/2009], wherein it was stated that the Secion 8 (1)(i) of
RTI Act prohibits disclosure of cabinet papers including records of
deliberations of the Council of Ministers, Secretaries and other officers for a
limited period, protects the Cabinet. The High Court explained that the
prohibition is not for an unlimited duration or an infinite period but lasts
till a decision is taken by the Council of Ministers and “the matter is
complete or over.”
In the second
appeal, as Central Information Commissioner I have directed on 7.1.2015 the Department
of Justice to disclose the notings.
After the Cabinet has decided, the notings cannot be withheld on the
pretext that the Bill did not become an Act. And I explained: ‘The First
Appellate Authority’s order that ‘decision of Council of Ministers is
disclosable but Cabinet papers are not,’ is totally untenable. Similarly, the
plea taken by the PIO that because the decision with regard to the introduction
of the Bill had not reached the finality and hence the noting could not be
disclosed does not stand, in view of the plain reading of the Sec 8 (1)(i) of
RTI Act and the decision of the Hon’ble Delhi High Court. As soon as the final decision was taken with
regard to the Bill, which is borne out of the fact by the introduction of the
same in Rajya Sabha in 2013 itself, the matter was thus complete or over, the
noting should have been disclosed. The CIC directed the Justice dept to provide
informaiton sought within a month free of cost.