Potential Cabinet Papers Yet To Be Brought Before Council Of Ministers Exempted From Disclosure Under RTI Act: Kerala High Court

The Kerala High Court has ruled that potential cabinet papers which have not yet been brought before the Council of Ministers are exempted from disclosure under the Right to Information Act.

Section 8(1)(i) of the RTI Act exempts disclosure of cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers.

Justice Murali Purushothaman held that such exemption is also applicable to "potential" cabinet papers since, if disclosure of information is allowed before it reaches the Council, the provision for exemption under Section 8(1)(i) of the Act will stand defeated.

"In my considered view, the exemption from disclosure available to cabinet papers referred to in section 8 (1) (i) will equally apply to potential cabinet papers not brought before the Council. Otherwise, by the time a decision is taken to bring a case before the Council and the material based on which decision has to be taken by the Council of Ministers is made public, the purpose for which exemption from disclosure provided in the Act will get defeated."

The petitioner had approached the State Public Information Officer (SPIO) under the RTI Act for a copy of the report submitted by a committee appointed by the State to review the Contributory Pension Scheme. 

The SPIO refused to provide the same citing that a copy could not be granted until the Council takes a decision on the report. Aggrieved by this, he approached the State Information Commission which directed the SPIO to make available the same within 10 days. 

The petitioner moved the High Court seeking a direction to the SPIO to comply with the orders of the Commission within a time frame. The State Public Information Officer also moved the High Court seeking to quash the Commission's orders. 

Senior Advocate Ranjith Thampan appearing for the petitioner argued that the report sought for by him is a piece of information covered under the Act and as per Section 3, he has the right to this information and the same cannot be denied to him. It was also contended that the Public Information Officers were bound to comply with the orders of the Commission. 

Special Government Pleader T.B Hood appeared for the SPIO and argued that under Rules of Business of the Government of Kerala, proposals for legislation, proposals involving any important change of policy or practice or any important alteration in the conditions of service shall be brought before the Council of Ministers for discussion.

He pointed out that the report sought by the petitioner is under consideration of the Government. It was added that since the report is the material on the basis of which a decision has to be taken by the Council, it falls within the category of information exempted from disclosure under section 8(1)(i). He submitted that the report can be made public only after the Council takes a policy decision on the matter. 

To this, the petitioner responded that according to Rule 17 of the Rules of Business, the report will form part of Cabinet papers only after the Chief Minister decides to bring it before the Council and such stage has not reached. He therefore asserted that the report was not exempted from disclosure under section 8(1)(i). 

Standing Counsel M.Ajay appearing for the State Information Commission submitted that the report is not yet before the Cabinet and according to the State and the SPIO, it is only 'likely' to be part of Cabinet papers. He contended that there cannot be 'potential cabinet papers' and what is contemplated in section 8(1)(i) is cabinet papers already placed in the Council. 

The Court noted that the prohibition under section 8(1)(i) is absolute and that the prohibitory stipulation does not permit disclosure of information on the satisfaction of the larger public interest rule.

Further, it was emphasised that the exemption under section 8(1)(i) is for a specific period with an obligation to make information public, after such period. It applies to cabinet papers including records of deliberations of the Council. 

However, going by the decision in Doypack Systems Pvt. Ltd. & Ors v. Union of India & Ors [1988 KHC 947], Cabinet papers also include papers brought into existence for the purpose of preparing submission to the Cabinet. 

Therefore, it was held that the report ought for by the petitioner was exempted from disclosure under Section 8. 

"The cases to be brought before the Council of Ministers have been determined under the Rules of Business. The proposals that are placed before the Council of Ministers may be the culmination of a series of steps. It is not for the State Information Commission or for this Court to say whether a matter is to be brought before the Council for decision, the time within which it shall be placed before the Council or on what materials the decision shall be taken."

As such, the orders of the Commission were set aside. It was held that the petitioner was not entitled to get a copy of the report until the Council of Ministers takes a decision on the report or until the authority competent under the Rules of Business decides not to bring the report/case before the Council. 

Case Title: Jayachandran v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 313

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