Disclose Union Cabinet note on NJAC: CIC

Central Information Commissioner M Sridhar Acharyulu directed the Department of Justice on 7.1.2015, to disclose the Union Cabinet note and details about its decision to establish National Judicial Appointment Commission. After cabinet has decided, the notings cannot be withheld on the pretext that Bill did not become Act, said CIC in second appeal filed by Mr. S.N. Shukla, who sought on 26.08.2013 a copy of the Bill as cleared by the cabinet and cabinet note about its settng up.  The Department of Justice had refused reasoning that it was a cabinet secret and was exempted u/S 8 (1)(i) of RTI act.

The Commission held: "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 decsion 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 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 introduction of the same in Rajya Sabha in 2013 itself, the matter was thus complete or over, the noting should have been disclosed."

CIC hence directed the Justice Department to provide informaiton sought within a month free of cost.

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) 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 the appellant claimed benefit of the proviso to that section, the PIO said that it cannot be given until 'the matter is complete or over'.  According to RTI, if the Cabinet has not taken a  decision yet, the information cannot be disclosed but when the decision had been taken, it could not be protected under the proviso.

The intial note on amendments to the Constitution for appointment of the Judges and for establishment of NJAC was defered by the cabinet and withdrawn in 2013. A revised note approved on 02.08.2013 by cabinet noted as follows:

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.

1. Formation of Judicial Appointments Commission as per the details in the draft Judicial Appointments Commission Bill, 2013.

The Cabinet in its meeting held on 02.08.2013 approved the proposal for the establishment of Judicial Appointments Commission. 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.

Ministry explained that cabinet decision was not complete as it was put to public consultation, with consultation meetings at different cities throughout the 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 according to CIC, he had every right to know the noting of the bill as soon as it was finally decided by cabinet as per judgment of  Delhi High Court in UOI Vs CIC [W.P(c) No. 8396/2009] wherein it was stated that the Sec 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. The High Court explained that the prohibition is not for an unlimited duration or infinite period but lasts till a decision is taken by the Council of Ministers and the matter is complete or over.

Read the Order here