RTI Judgement Series: All Cabinet Notes regarding tabling of bills must be displayed
Moneylife Digital Team 22 January 2013

The Commission ordered that all Cabinet Notes regarding tabling of bills must be displayed on the website in fulfilment of the requirements of Section 4(1) (d) of the RTI Act. This is the 24th in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in an RTI application


The Central Information Commission (CIC) while rejecting the exemption under Section 8(1)(i) of the Right to Information (RTI) ordered that all Cabinet Notes regarding tabling of Bills must be displayed on the website in fulfilment of the requirements of Section 4 (1)(d) of the RTI Act. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said, “Citizens are certainly deeply affected by every law made by Parliament, and hence have a right to know the basis on which these laws are being made.”

 

“The Secretary, Department of Atomic Energy (DAE) is directed to ensure that the Cabinet Note mentioned above is displayed on the website of the Department before 20 July 2012 and all Cabinet Notes relating to proposals for new bills to be tabled in the Parliament should also be displayed on the website of the Department within seven days of tabling the bill in the Parliament,” the CIC said in its order issued on 26 June 2012.

 

Venkatesh Nayak, a resident of Delhi on 20 January 2012 sought information about a Cabinet Note regarding the Nuclear Safety Regulatory Authority Bill, 2011. Here is the information he sought:

 

1. A clear photocopy of the Cabinet Note prepared by your department seeking approval of the Union Cabinet for introducing The Nuclear Safety Regulatory Authority (NSRA) Bill, 2011, in the Lok Sabha along with all annexures. This Bill was introduced in the Lok Sabha on 7 September 2011;

2. The total number of records and live files held by the DAE Secretariat and its units that have been assigned the security classification: “top secret”, 'secret' and confidential' as on the date of this application. I wish to clarify that (would like to know) only the total number of records and files marked with each type of security classification mentioned above but not the total number of pages in each file. I also wish to clarity that I do not want information about any public sector undertaking or aided institution under CM;

3.The subject matter or topic of each record and live file that has been assigned the security classification “top secret”, 'secret' and confidential' as on the date of this application; and

4. A clear photocopy of the information submitted by DAE to the Central Information Commission under Section 25(3) of the RTI Act for the period: 1 April 2010-31 March 2011

 

The Public Information Officer (PIO) forwarded the query 1 to PIO of ER Section, DAE.

He said...

Point No.1: A copy of the RTI application is being forwarded to PIO/OSD(ER) for furnishing a reply to you as the subject matter is dealt by ER Section, DAE.

2. Point No.2 The information requested for is not available as no records are kept regarding the total number of such files centrally.

3. Point No.3 The information requested are exempted from disclosure under Section

8(a) of the RTI Act, 2005.

4. An extract of Annual return for the year 2010-Il submitted by DAE to CIC under Section 25(3) of the RTI Act is enclosed

 

The PIO of ER Section, DAE, while refusing to disclose the information claimed exemption under Section 8(1)(i) of the RTI Act.

 

Not satisfied with the reply, Mr Nayak then filed an appeal with the First Appellate Authority (FAA). The FAA in his order said, “...the use of the word ‘and’ appearing in Section 8(1)(i) between ‘after the decision has been taken’ and 'the matter is complete or over’ implies that both the conditions, i.e. (i) the decision has been taken; and (ii) the matter is complete or over, must be satisfied for disclosure of full information.”

 

The Department-related Parliamentary Standing Committee on Science & Technology, Environment & Forests had put the contents of the Bill in the public domain and invited comments on it. As is public knowledge, the Committee has deliberated on the report and forwarded its observations to the Chairman of Rajya Sabha and Speaker of the Lok Sabha.

 

“Thus, the matter stands and has to be taken forward, and the second condition i.e. ‘the matter is complete or over’ is not satisfied in this case. In view of the above, the information sought does not qualify for disclosure at this stage...” the FAA said.

 

Mr Nayak then approached the Commission with the second appeal. He said, “It is undisputed that the information relating to the Nuclear Safety Regulatory Authority Bill sought by me is in the nature of a Cabinet Note. However CPIO#1 has failed to appreciate the holistic position of the exemption provision that he has sought to invoke.”

 

“Upon securing the approval of the Union Cabinet, the minister of state for public grievances and pensions tabled the said bill in the Lok Sabha in September 2011. So the purpose of the Cabinet Note was completed upon securing Cabinet approval and the subsequent tabling of the said Bill in Parliament. The contents of the Cabinet Note now qualify for disclosure under the proviso to Section 8(1)(i) as the matter is over. The passage of the Bill is dependent upon the will of both Houses of Parliament and the Union Cabinet cannot undertake to get the Bill passed. Therefore the limited purpose of the Cabinet Note attached to the said Bill may be treated as over. However CPIO #1 has not appreciated this fact. Instead, he has mechanically invoked Section 8(1)(i) without paying any attention to the proviso underlying it, which entitles me to receive the said information,” Mr Nayak said in his appeal.

 

During the first hearing on 18 May 2012, the PIO was not present at the Mumbai NIC studio. When the Commission called up the Joint Secretary, he stated that he had not received the notice for hearing. The matter was then adjourned and a fresh notice was issued.

 

During the second hearing on 25 June 2012, both the parties agreed that that the Cabinet Note has been put up to the Cabinet, and after due approval a bill has been presented to the Parliament. While the PIO claimed that the matter is not complete and over until the Bill is enacted, duly gazetted, and a notification is issued that the bill comes into force, Mr Nayak contended that rather than nearly invoking 8 (1)(i) mechanically the PIO has a duty and a burden to demonstrate what interests are sought to be protected by the secrecy of Cabinet papers at this stage of the bill, which will outweigh the disclosure in public interest.

 

When asked by the Commission, if he can explain the harm which may accrue to the protected interest if the information is disclosed, the PIO stated that since the Bill has not been enacted, revealing the Cabinet Note may be inappropriate and should not be revealed.

 

Mr Nayak contended that the NSRA Bill has proposed amendments to the RTI Act while the Department of Personnel & Training (DoPT) has told the Parliament that no amendments are proposed to the RTI Act and therefore he needs to know the contents of the Cabinet Note to ensure that no amendments are made to the RTI Act without widespread consultation.

 

The PIO stated that the Bill was already in the public domain and therefore he was not able to appreciate the appellant’s contention. The Commission then reserved its order.

 

The Commission noted that the PIO has claimed exemption under Section 8 (1)(i) of the RTI Act whereas the appellant has stated that the Cabinet Note sought by him is not covered by the said exemption.  The RTI Act has codified the fundamental Right to Information of Citizens guaranteed under Article 19 of the Constitution.

 

As per Section 3 of the Act, “Subject to the provisions of this Act, all citizens shall have the right to information. The provisions of the Act by which any information may be denied to a Citizen is defined in ten exemptions of Section 8 (1) of the Act. Section 8 (2) of the Act, which states, ‘Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interests in disclosure outweighs the harm to the protected interests’ would override the exemptions of Section 8 (1) if a larger public interest in disclosure is shown.

 

Section 8 (1) (i) under which the PIO has claimed exemption and that has been upheld by the FAA exempts, "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:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;"

 

Mr Gandhi, the CIC, said the Commission agrees with the FAA’s contention that the use of the word ‘and’ appearing in Section 8(1)(i) between ‘after the decision has been taken’ and ‘the matter is complete or over’ implies that both the conditions, i.e. (i) the decision has been taken; and (ii) the matter is complete or over, must be satisfied for disclosure of full information.

 

“If the decision has been taken and the matter is complete or over, the exemption under Section 8(1)(i) would not be available. If the decision has not been taken or the matter is not complete or over the information would be exempt. The PIO has argued that this means that the purpose for which the Cabinet Note was made—passing of the proposed Act—should be over. If such an interpretation were to be given it would mean that if an Act for which the Cabinet Note was made is either not passed by Parliament, or not Gazetted, or not Notified, such a Cabinet note would never be disclosed under the RTI Act,” it noted.

 

Mr Gandhi said it may be worthwhile to glimpse the mind of the Parliament when passing the RTI Act to understand the frame of mind of the elected representatives.

 

In Parliament when the RTI Bill was debated, Varkala Radhakrishnan, MP said, “Even Cabinet papers, after a decision has been taken, must be divulged as per the provisions of this amendment. It cannot be hidden from the knowledge of others. It must be divulged. But before taking a final decision, the Cabinet papers can be kept secret.”

 

“Thus it is clear that the intention to prevent disclosure was only until the time that the decision was taken by Cabinet on the Cabinet Papers/Notes. Once the Cabinet decision has been taken, the first part of the proviso that the decision had been taken would be fulfilled. With the tabling of the bill in Parliament the second part of the Proviso that the matter is complete or over would also have been met,” the Commission said.

 

The Commission ruled that the Cabinet Note is material on the basis of which a Cabinet decision is taken to table a bill in Parliament. “Once the decision is taken by the Cabinet to table the bill in Parliament the ‘decision has been taken'’ when the bill is tabled in Parliament ‘the matter is complete or over’ as far as the Cabinet is concerned. In the instant case, since the ‘the decision has been taken, and the matter is complete, or over:’ the exemption claimed under Section 8 (1) (i) of the RTI Act by the PIO is not upheld,” it said.

 

The Commission then directed the PIO to provide an attested photocopy of the Cabinet Note along with all the annexures in query-01 before 20 July 2012. The Commission in exercise of its powers under Section 19 (8) (a) (iii) of the RTI Act, also directed the Secretary, DAE to display this Cabinet Note and all Cabinet notes in future on the department's website where such Cabinet notes relate to proposing a new bill to be tabled in Parliament, within seven days of the bill being tabled in Parliament.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/A/2012/001023/19365

https://ciconline.nic.in/cic_decisions/CIC_SG_A_2012_001023_19365_M_85347.pdf

Appeal No. CIC/SG/A/2012/001023

 

Appellant                                            : Venkatesh Nayak

                                                          New Delhi- 110017

 

Respondent                                                 : A Anandraju,

                                                            PIO & OSD(ER)

                                                          Department of Atomic Energy

                                                          Officer on Special Duty (ER) & CPIO

                                                          Anushakti Bhawan                                                                                                   

                                                          Chatrapati Shivaji Maharaj Marg

                                                          Mumbai- 400001

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