The order is likely to empower RTI activists and citizens to obtain information previously denied by an over-guarded senior executive
In a major fillip to citizens and Right to Information activists alike, accessing information on the agenda items discussed in the union and state cabinet meetings has become easier. The Central Information Commission has issued an order saying that under the RTI Act 2005, the cabinet secretariat cannot deny access to items on the agenda placed before the union cabinet after a meeting is over.
“The CIC has also advised the cabinet secretariat 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 it (the cabinet secretariat). The CIC also said that it is advisable for ministries and departments to upload the ‘unclassified portions’ of their monthly reports to the cabinet secretariat on their respective websites,” said Venkatesh Nayak of the Commonwealth Human Rights Initiative, on whose petition the CIC issued the order.
The order, Nayak said has far reaching consequences as it would also empower people in states to access state cabinet meeting records. “I hope readers will use the attached CIC’s order to compel publication of 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.”
Elaborating on how the order would assist in bringing more monthly reports into the public domain, Nayak said that if similar reporting systems exist at the level of the states, RTI users may engage with 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 state-level cabinets. I hope they will use the CIC’s order in their interventions henceforth.”
A long process
Nayak was successful in getting a favourable CIC order after years of hard work. Recalling how he has been using the RTI to seek disclosure of agenda items discussed by the union cabinet after each meeting since 2008-09, the activist said the general practice of the government was to issue press releases on the decisions taken by the cabinet after each meeting. “However, the entire agenda placed before the cabinet is never disclosed proactively, despite the RTI Act being in place for more than a decade.”
Nayak’s attempts to get a formal system of sharing of information in place was resisted at every level by the Centre – be it on grounds of confidentiality or how information needs to be provided on a need to know basis. “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.”
In his second appeal before the CIC, Nayak argued that agenda items of the union cabinet meetings have been disclosed regularly in the past and as such there was no reason why such practice should be discontinued under the new political dispensation. He said though the cabinet secretariat again objected to the disclosure in its response to his second appeal, the CIC ruled that there was no reason why the practice of disclosure must be discontinued. However, Nayak said the CIC stopped short of directing the cabinet secretariat to disclose the agenda items proactively and as such they will have to be sought through formal RTI applications even now.
Referring to how he had sought a list of departments and ministries that had not submitted their monthly reports to the cabinet secretariat for the months of October-December, 2014, Nayak said 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 tenth of the following month. “These rules themselves were a confidential document until the CIC ruled in favour of their disclosure in my 2nd appeal case in 2011.”
Secretariat stand stood contrary to Modi’s assertion
Stating that the purpose of the RTI intervention was to find out whether all ministries and departments were complying with rule, Nayak said the CPIO of the cabinet secretariat had 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.
Nayak argued in his second appeal that ‘disclosure of this information was a requirement in light of the 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 second appeal was filed, Nayak cited it in an addendum.
The CIC has now advised the cabinet secretariat to put in place a mechanism for monitoring compliance of ministries and departments with their reporting obligations under rule 10, which permits submission of monthly reports in two parts – sensitive matters classified as “secret” or “top secret” and non-sensitive information as “unclassified reports”.
It has also advised ministries and departments to consider proactively disclosing the “unclassified” portions of the monthly reports on their websites. However, nothing in the cabinet procedure rules requires the proactive disclosure of the “unclassified reports”.
Rules in other countries
In India, parliament had accepted way back in 2004-05 that 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 or law on access. But despite the law being in place, the proceedings of the cabinet in India and most state governments continue to remain under wraps as the “need to know” principle continues to apply at the highest level of the executive.