13 May 2016

By Venkatesh Nayak

In a decision issued recently in one of my cases, the Central Information Commission (CIC) has ruled that under The Right to Information Act, 2005 (RTI Act), the Cabinet Secretariat (Cab. Sectt.) cannot deny access to the items on the agenda placed before the Union Cabinet after a meeting is over. The CIC has also advised the Cab. Sectt. to put in place a mechanism to monitor Departments and Ministries for their compliance with the requirement of sending monthly reports of work done by them to the Cab. Sectt. The CIC also said that is advisable for the Ministries and Departments to upload the "unclassified portions" of their monthly reports to Cab. Sectt. on their respective websites. A copy of the CIC's order is accessible here.

Background to the RTI case regarding Cabinet agenda items

Readers may recollect, since 2008-09 I have been using RTI to seek disclosure of the agenda items discussed by the Union Cabinet after each meeting is over. I have circulated these agenda items via email alerts to readers. The general practice of the Union Government is to issue press releases on the decisions taken by the Cabinet after each meeting. While the Cabinet meetings were held every Thursday under the United Progressive Alliance (UPA) Government, the National Democratic Alliance (NDA) Government advanced them to Wednesday every week after assuming power in 2014. Special Cabinet meetings are held as and when required. The decisions of the Union Cabinet which the Government elects to disclose are uploaded on the Press Information Bureau (PIB) website. However the entire agenda placed before the Union Cabinet for each meeting is never disclosed proactively despite the RTI Act being in place for more than a decade.

When I submitted an RTI application for the agenda items discussed by the NDA Cabinet from August 2014 onwards, the Central Public Information Officer (CPIO) rejected the request invoking Section 8(1)(i) of the RTI Act relating to Cabinet confidentiality. The First Appellate Authority (FAA) upheld this order stating that it was up to the concerned Ministries to take the call about whether the matter discussed by the Cabinet was decided upon and the matter was complete or over. The RTI application, the CPIO's reply, my first appeal and the FAA's order are accessible here.

In my second appeal, before the CIC, I argued that the agenda items of the Union Cabinet meetings have been disclosed regularly in the past and there is no reason why such practice should be discontinued under the new political dispensation. Despite the Cab. Sectt. repeating its objection to disclosure in its response to my 2nd appeal (which reached me by post a day after the hearing at the CIC), the CIC has ruled that there is no reason why the practice of disclosure must be discontinued. However, in its order, the CIC stopped short of directing the Cab. Sectt. to disclose the agenda items proactively although I had prayed for the same arguing that proactive disclosure would put an end to my RTI applications on the subject. Unless the Cab. Sectt. makes a decision of proactive disclosure, the agenda items will have to sought through formal RTI applications even now.

Background to the RTI case regarding monthly reports of the ministries and departments

In the same RTI application to the Cab. Sectt., I had also sought a list of departments and ministries that had not submitted their monthly reports to the Cab. Sectt. for the months of October-December, 2014. Under the Rules of Procedure in Regard to Proceedings of the Cabinet, 1987 (Rule 10), every ministry and department is required to submit a report of the works done during the previous month by the 10th of the next month. These Rules themselves were a confidential document until the CIC ruled in favour of their disclosure in my 2nd appeal case. Although the Cab. Sectt. has never disclosed these Rules on its website I seem to be the only person outside government to have a numbered copy of these Rules.

When I sought copies of the monthly reports submitted by 10 Ministries in 2014, the Cab. Sectt. transferred the RTI application to 27 departments in these Ministries to respond to me directly. While some of the departments sent me copies of their monthly reports prepared under Rule 10, the Department of Defence invoked Section 8(1)(a) relating to national security to refuse access. Strangely, some of the departments sent me copies of their "nil" reports filed with the Cab. Sectt. It was almost like admitting that no work was done that was worth reporting to the Cab. Sectt. by these departments. Some other departments replied that they had not been submitting any such report under Rule 10. So the purpose of the current RTI intervention was to find out whether all ministries and departments were complying with Rule. 

The CPIO of the Cab. Sectt. invoked Section 7(9) of the RTI Act to reject this part of the RTI application, even though the RTI Act permits rejection only for reasons stated in Sections 8 and 9. Apart from pointing out this illegality in my 2nd appeal, I argued that disclosure of this information was a requirement in light of the Hon'ble Prime Minister's exhortation made at the inaugural session of the 10th Annual RTI Convention organised by the CIC in October, 2015, that all citizens should have the right to ask questions and demand accountability of public authorities. As this statement was made after the 2nd appeal was filed, I cited it in an addendum to my 2nd appeal submitted to the CIC on the date of the hearing (see pages 27-30 of the RTI docs).

The CIC has now advised the Cab. Sectt. to put in place a mechanism for monitoring compliance of ministries and departments with their reporting obligations under Rule 10. It has also advised the Ministries and departments to consider proactively disclosing the "unclassified" portions of the monthly reports proactively on their websites. Rule 10 permits the submission of monthly reports in 2 parts- sensitive matters as reports classified "secret" or "top secret" and non-sensitive information as "unclassified reports". However nothing in the Cabinet Procedure Rules require the proactive disclosure of the "unclassified reports".

Why this RTI intervention?

Thanks to the wisdom of the advocators of RTI in 2004-05 which Parliament accepted, Cabinet papers can be disclosed under the RTI Act in India subject to certain restrictions such as, completion of the decision-making process and non-applicability of other exemptions listed in Section 8(1) of the Act. In other countries like the UK, Canada and Australia, Cabinet papers are not disclosed to the public unless they are 20-30 years old, depending upon the country's policy/law on access. The Indian model is a major departure from this trend. Nevertheless, the proceedings of the Cabinet in India continue to remain under wraps, except for the decisions that the Government elects to announce. The "need to know" principle continues to rule at the highest level of the executive. The situation is the same at the level of most State Governments. Transparency applies not only to panchayats, municipalities and the district administration but also to the highest decision-making bodies in the States and at the Centre.

I hope readers will use the the attached CIC's order to compel publication of the the agenda items discussed by the State level Cabinets. I also hope readers will use this order to put pressure on the Ministries and Departments in the Central Government to make their monthly reports public regularly. This can be a panacea to the "policy paralysis" in governments that often gets blamed on RTI. If the monthly reporting system is complied with and strengthened, the symptoms of "policy paralysis" can be detected early on and correctives applied in a timely manner. RTI can be used as a constructive tool for this process of governance reform. 

If similar reporting systems exist at the level of the States, RTI users may engage with the departments to make such reports public. If such systems do not exist they may advocate for the adoption of such reporting systems. Some RTI users in India have been seeking transparency in the functioning of the State level Cabinets. I hope they will use the attached CIC's order in their interventions henceforth.