CENTRAL INFORMATION COMMISSION
Adjunct to Appeal No. CIC/WB/A/2008/001229 dated 10-7-2008
Right to Information Act 2005 - Section 19
Appellant: Shri R. C. Gupta
Respondent: Department of Personnel and Training (DOPT)
Decision announced 13.8.2010
FACTS
By our decision of 14.12.2009 we had directed as follows: –
“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 and the Civil Services. The 44th Amendment to
the Constitution of India for the first time not only used the term
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“Cabinet”, but also literally defined it. Clause 3 of Article 352,
which was inserted by 44th Amendment, reads as under: –
“The President shall not issue a Proclamation under
clause (1) or 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 that 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 is 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. 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:
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“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.”
Appellant Shri R. C. Gupta on the other hand has complained to this
Commission that the decision had not been complied with. By our decision
dated 12.4.2010, CPIO Shri Deepak Israni, Under Secretary, DOPT was asked
to submit a compliance report on this decision notice “to reach this Commission
on or before 26th April 2010.” In response to this we have received a letter of
20th April 2010 from CPIO Shri Deepak Israni, Under Secretary as follows: –
“It is submitted that in response to CIC decision dated
14.12.2009, a note was put up by the undersigned in the
capacity of CPIO to the Appellate Authority for providing
necessary information to the appellant as per directions of the
CIC. However, as the matter pertains to ACC, a decision was
taken in this Department to obtain the views of Cabinet
Secretariat before furnishing information to the applicant, Shri R.
C. Gupta. Accordingly, the relevant File along with F. No.
16(10) EO/02(ACC) containing the ACC decision was sent to
Cabinet Secretariat on 18.12.2009 for their views/ comments.
However, this Secretariat’s files as well as the views of the
Cabinet Secretariat in the matter are still to be received from
them. In view of this, the undersigned is unable to provide
information to the applicant till date.’
Subsequently we have received a letter of 22nd April 2010 from CPIO
Shri Deepak Israni informing that the Cabinet Secretariat has been requested to
expedite the matter.
NOTICE
The decision of this Commission is unequivocal and clear. It is not for
the CPIO to then seek orders of a third party on the matter of compliance with
such a Decision Notice that, under section 19 of sub-section (7) of the RTI Act,
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‘shall be binding’. Under the circumstances we can only conclude that CPIO
Shri Deepak Israni has obstructed the furnishing of the information and,
therefore, rendered himself liable for penalty. CPIO Shri Deepak Israni, Under
Secretary, DOPT will, therefore, show cause by 27th August, 2010 as to why he
should not be held liable for penalty amounting to Rs. 25,000/-. Shri Israni may
submit his response to this notice in writing addressed to Shri Pankaj K. P.
Shreyaskar, Joint Registrar, Central Information Commission by the date
prescribed failing which the Commission reserves the right to proceed in
imposition of penalty under section 20 (1). Copy of this notice will also be sent
to the appellant Shri R.C. Gupta.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
13-8-2010
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
13-8-2010
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