Cabinet note is not secret

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.

By:Madabhushi Sridhar