CENTRAL INFORMATION COMMISSION
Adjunct to Complaint No. CIC/WB/C/2010/000120 dated 14-5-2010
Right to Information Act 2005 - Section 19
Complainant: Shri Venkatesh Nayak
Respondent: Dep't of Personnel & Training (DOPT)
Appeal heard in Full Bench 20.8.2010
Decision announced 30.8.2010
Background
:
In accordance with the Commission’s decision of 3-8-2010 in Single
Bench the full Commission heard the case on 20th August 2010. The following
are present:
Complainant:
Shri Venkatesh Nayak
Shri Shekhar Singh
Respondents:
Shri V.K. Velukutty, DS (V.II) DOPT
Shri K.G. Verma, Director (RTI) DOPT
In the decision of 3-8-2010 we had, while dismissing the appeal, on the
request for a copy of the draft PIDPI Bill approved by Cabinet, decided as
follows:
“…the larger complaint argued before us that the kind of information
sought should not be exempted from disclosure u/s 8 (1) (i), and dealt with
as per Section 4 (1) (c ) is indeed not an issue which Dy. Secretary Shri
V.K. Velukutty is competent to discuss. This issue touches upon the
nature of the law itself and raises the issue of whether this Commission
has the authority to determine (i) whether different clauses of law are
contradictory, and (ii) if so found, to take action either u/s 19 (8) (a) or
Section 25 (5) of the RTI Act. To decide upon this issue we will require a
larger Bench. For this purpose a Bench consisting of Chief Information
Commissioner, Information Commissioner (SM) and Information
Commissioner (DS) is constituted. The Full Bench will meet on 20th
August, 2010 at 3.00 p.m. DOPT may on this occasion depute an officer
authorised to discuss this issue and assist the Commission in arriving at a
decision.
Appellant Shri Venkatesh Nayak sought to clarify that clause 8 (1) (i)
and 4 (1) (c) are not contradictory but that the interpretation given to them by
public authorities in disclosure under the RTI Act has been so thus far. In this
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context he had, subsequent to the hearing, submitted a supplementary
submission in which he has cited the contents of the circular of 15-4-02 of the
Cabinet Secretariat laying down procedural requirements to be met while
preparing/submitting notes for the Cabinet/Cabinet Committee/ Group of
Ministers. In this he invited our attention to the normal procedure for inter-
ministerial consultation laid down in Part-V. He submitted that up to this stage
the draft Cabinet Note cannot be considered a draft eligible for exemption
from disclosure u/s 8 (1) (i). This exemption can only apply to the Note
submitted in final draft to the Cabinet Secretariat. In this context he cited
section 4 (1) (c), which reads as follows:
4 (1) (c)
” publish all relevant facts while formulating important policies1
or announcing the decisions which affect public.”
In the revised version of his supplementary submission appellant Shri
Venkatesh Nayak has referred to a decision of this Information Commission
on this subject announced on 7.7.’10 in complaint No. CIC/SG/C/2010/000345
Venkatesh Nayak vs. Chief Secretary, Delhi in which this Commission has
held as follows:
“Given that the DP Bill is a significant legislative change, the
relevant public authorities involved in drafting of the said bill had
a duty to proactively disclose its contents under Section 4(1) (c)
of the RTI Act. The concerned public authority, however, acted
only after the Complainant approached the Commission and
filed a complaint under Section 18(1) of the RTI Act. The public
authority should have disclosed the contents of the DP Bill suo
motu and by omitting to do so, the very purpose of Section 4(1)
of the RTI Act stands defeated. The Commission has further
observed that at present, the GNCTD is not fully complying with
Section 4 of the RTI Act and therefore, is of the view that
citizens must be provided with means to debate legislative and
policy changes which are likely to affect public lives as
contemplated by the GNCTD. The citizens individually are the
sovereigns of the democracy and they delegate their powers in
the legislature. The RTI Act has recognized this and Section
4(1) (c) is meant to ensure that the citizens would be kept
informed about proposals for significant legislative and policy
changes.”
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Underlined by us for reference
2
Although this does form part of the ruling in that appeal before the
Commission, this is not part of the Decision and we have treated it as an
issue to assist in our deliberation
Complainant Shri Nayak conceded that policies which do not require
Cabinet approval need not face a perceived contradiction between Sections 8
(1) (i) and 4 (1) (c ). However, this has come up in the case of PIDPI Bill,
which constitutes in itself an important policy of wide public interest to be
determined through an Act of Parliament. Appellant also made a written
submission in the hearing as follows:
1. “There is a distinction between the process of “formulation” and
“approval”. Cabinet papers are for approval.
2. Till the draft bill is put up to the cabinet, it is essentially in a
process of formulation (with intermediate internal approvals, which
are not exempt as they are not from the cabinet).
3. The formulation process involves drafting, consultations,
redrafting, interim approvals. This is the process that goes on up to
and including when the committee of secretaries considers the draft
bill. It is only after it is redrafted, following discussions in the
committee of secretaries, that it can become a part of a cabinet
note – which attracts exemption under S. 8 (1) (i).
4. Therefore, the provisions of S.4 (1)(c) are certainly applicable till
the stage of a cabinet note.
5. Besides, if this was not so, there is no real mechanism for public
consultations, as bills in Parliament do not necessarily have to be
opened to public feedback, and there is no other mechanism,
without an elaborate procedure, which is almost never activated, of
allowing the public to effectively comment on the draft bill.
6. In any case, it is much easier and time effective to allow a public
debate before the bill is introduced in Parliament, as that is the only
way that the public can brief its representatives in Parliament,
directly or through the mass media, to represent their views.
7. Therefore, there is actually no conflict between 8(1)(i) and 4(1)
(c), unless the government insists on terming every document that
is involved in any process that might finally lead to seeking approval
of the cabinet, as a cabinet paper this is not only incorrect but also
not in public interest.
8. However, selectively other exemptions under S.8 (1) can be
invoked, where relevant, to exempt those papers (even though they
are not yet cabinet papers) that attract one or more of the
exemptions.
9. It might also be pointed out here that though S.8 (1)(i) exempts
“cabinet papers”, it does not ipso facto exempt material that is
independent of the cabinet note, though it might also be a part of
the cabinet note. Therefore, if a cabinet note contains statistics3
about poverty, for example, the fact that those statistics become a
part of the cabinet note does not mean that they are now exempt
under the RTI Act. Perhaps that is why the Government thought it fit
to release a copy of the draft bill to the media even before the
cabinet meeting (see attachments), even while denying it under the
RTI.”
In this context appellant cited the Finance Ministry’s publication in
August 2009 of a “Draft Direct Taxes Code Bill (Draft Code)”, discussing the
need for replacing the Income Tax Act, which placed the draft Bill together
with a discussion paper in the public domain, followed by publication of a
revised discussion paper on the subject dated June 15, 2010. On a question
by the Bench as to whether publication of the draft Bill still under
consideration will not amount to breach of privilege of Parliament and is
therefore, exempt u/s 8 (1) (c) Shri Shekhar Singh assisting complainant
submitted that Parliament has no claim over a draft Bill prepared by
Government until it has been approved for submission to Parliament by
Cabinet.
Respondent Shri K.G. Verma, Director, DOPT, on the other hand,
submitted that the very first words in clause 8 (1) of the Act read,
“Notwithstanding anything2 contained in this Act”. If therefore follows that if
there is any perceived contradiction, it is the exemption u/s 8 (1) which will
override such a contradiction. If, therefore, the draft Bill before its submission
to Cabinet is made public Section 8 (1) (i) will be rendered irrelevant. Shri
K.G. Verma submitted that at any rate there is a full discussion in Parliament
on presentation of Draft legislation and also the requirement of a Press
briefing. In the present case Shri Velukutty displayed press reports, which
indicated that Government has indeed disclosed this information. He
displayed newspaper reports of August 5, 2010 in Hindustan Times, New
Delhi, Times of India New Delhi, and Indian Express New Delhi. After the
consideration of the Bill by Cabinet follow up reports also appeared in the
Hindustan Times and Indian Express dated 10-8-2010 but as pointed out by
complainant in the hearing, this did not form part of the PIB Press release of
that date. Compalinant has taken note of this in point 9 of his written
2
Emphasised by respondent
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submission that we quote above. Shri Velukutty further submitted that the
question on policy formulation would apply only once the Bill has been passed
by Parliament, which will then form the basis of policy.
DECISION NOTICE:
The plea of complainant is that the information he seeks is not in
violation of Section 8 (1) (i) but is only in full compliance with Section 4 (1) (c)
insofar as it applies to Section 8 (1) (i). The key issue for decision here,
therefore, would appear to us to be to distinguish what constitutes the stage of
“formulation”, when disclosure of draft legislation leading to policy is mandatory,
as against the stage of “finalisation”, when it will constitute a document exempt
from disclosure. This would imply that exemption u/s 8 (1) (i) will not apply to
deliberations leading to formulation of a policy framework till such time as the
draft is submitted to the Cabinet Secretariat, with all its necessary attachments
for submission to the Cabinet, which would then be a final form given to the
draft. Thereafter, this draft would remain exempt from disclosure till such time
as the decision has been taken and action to be taken thereon is “complete
and over”.
In the present case appellant’s plea for access to the PIDPI Bill passed
by the Parliament has been refused and appeal before us dismissed in our
decision of 3-8-2010 on the grounds that this is a request for information after
the draft Bill has been put in motion for submission to Parliament. At that
stage the disclosure would be in violation not only of Section 8 (1) (i) but also
of Section 8 (1) (c). However, with reference to the larger issue, the Cabinet
Secretariat in its procedural requirement to be met by preparing notes has
noted as follows:
“There have been instances in which the data/information,
based on which proposals are formulated, has undergone
significant changes by the time the proposals are actually
considered by the Cabinet/ Cabinet Committees/ GOM. In such
cases, it would be advisable either to withdraw the Note for
necessary updating and revision or bring the facts to the notice
of the Cabinet Secretary/ Cabinet/ Cabinet Committees/ GOM
for consideration, before the note is taken up for consideration.”
A Note that is withdrawn would therefore not constitute a Cabinet Note
and would consequently qualify for disclosure. The distinction between
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formulation and finalisation is then clear. It is only when proposals formulated
are actually taken up for consideration by the Cabinet that they become so
exempt. In other words, when a Cabinet Note is finally approved for
submission to the Cabinet through the Cabinet Secretariat Sec 8 (1) (i) will
apply. Once approved by Cabinet it will also qualify for exemption u/s 8 (1) (c).
For the above reasons this Commission holds that exemption u/s 8 (1)
(i) will apply only when a Note is submitted by the Ministry that has formulated
it to the Cabinet Secretariat for placing this before the Cabinet. All
concomitant information preceding that, which does not constitute a part of
that Cabinet Note will then be open to disclosure u/s 4 (1) (c), but in a manner
as will not violate the provisions of Sec 8 (1) (i). The Commission further
recommends u/s 25 (5) that Cabinet Secretariat considers amending Part V of
Circular No. 1/16/1/2000-Cab of 15.4.2002 to allow for public consultation in
appropriate form. This issue is decided accordingly. There will be no cost.
Reserved in the hearing, this decision is announced in open chambers
on this the thirtieth day of August 2010. Notice of this decision be given free
of cost to the parties.
(Satyananda Mishra) (Deepak Sandhu)
Information Commissioner Information Commissioner
(Wajahat Habibullah)
Chief Information Commissioner
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 K.P. Shreyaskar)
Joint Registrar
30-8-2010
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