Last Wednesday the Kerala High Court in Kochi stayed an order by the State Information Commission (SIC) asking the government to provide, under the Right to Information law details of cabinet meetings under the previous United Democratic Front (UDF) government in its final days, from January 1 to March 12 this year, during which some apparently controversial decisions were taken. The court was acting on a writ petition filed by the current Left Democratic Front (LDF) government, challenging the SIC’s order.
The court also restrained the SIC from taking coercive steps against the officials in pursuance of the order. The RTI application was first rejected during the tenure of the UDF government. But, interestingly, the decision to continue to deny the information, and go a step further by initiating a legal battle to defend the decision, has been taken by the present LDF government. Both governments have taken a disturbingly similar stand on ‘hiding’ certain information from the public.
Some believe that the current LDF government has decided to challenge the SIC’s order in the court out of fear that, by complying with the order, it might set a new precedent.
However, it may be noted that the Central Information Commission in New Delhi (CIC) had earlier passed its order on a similar complaint by another RTI applicant. The CIC, in its order dated May 9, endorsed the monthly uploading of information about the status of compliance by every Union Ministry/ Department on the official website. The RTI applicant, Venkatesh Nayak, approachhed the CIC after his RTI application, seeking information on the agenda of the Union Cabinet meetings held from August, 2014 to December, 2014, and monthly summaries of various ministries and departments of the central government, was not properly answered by the concerned Central Public Information Officer.
In Kerala, it all began when the earlier UDF government, through the ‘Strictly Confidential’ section of the General Administration Department, rejected an RTI application seeking information on the agenda and minutes of Cabinet meetings held between January 1 and March 12 this year, citing section 8(1) (i) of the RTI Act which allows the authorities to decline the request. The section reads:
Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
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;
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed.
However, advocate D.B. Binu, who filed the RTI application, approached the SIC with an appeal, stating that the denial of information by the General Administration Department (GAD) was a violation of the RTI Act.
In its reply to the SIC, the GAD stated that, as per Section 8(1) (i) of the RTI Act, information relating to Cabinet decisions is supposed to be given only after the procedures regarding those decisions are complete. It further stated that the decisions taken in Cabinet meetings are handed over to the concerned administrative departments and, after that, it is these departments alone that handle the decisions. Therefore,only the concerned departments know whether the procedures have been completed. The GAD also said that, consequently, information on the various decisions can be provided only by the concerned departments.
On rejecting the RTI applicant’s request for information on the government orders that were issued on implementing Cabinet decisions and also for information about Cabinet decisions that were not pursued, the Kerala government said it was not legally bound to provide these details and does not keep any documents on them. In fact, the government said these details do not constitute the concept of ‘information’ as defined in the section 2(f) of the RTI Act.
The government’s report to the SIC also said that it had declined to provide certain documents sought under the RTI application because they contained two kinds of information: the kind that can be made public under RTI and the kind that it is not obliged to make public.
In response, Binu said in a letter to the SIC that some ministers were misleading the public and media by giving wrong information on Cabinet decisions. He also accused the government of secretly helping many industrialists and businessmen and said the government was wrongly interpreting Section 8(1) (i) of the RTI Act. He insisted that every citizen has the right to know what the Cabinet decides.
Citing 4(1) (a) and (b) of the RTI Act dealing with the ‘Obligations of Public Authorities’, Binu further said that the government should voluntarily give the public access to such information. He pointed out that, according to the provisions in the Secretariat Manual, the government is required to issue orders relating to Cabinet decisions within 48 hours.
After considering arguments from both sides, the SIC ruled in favour of the RTI applicant. On June 15, the CIC ordered the state government to provide the information sought by the applicant within 10 days and observed that information about Cabinet decisions should be made public once the procedures over them were completed.
The head of the SIC, Vinson M. Paul, also called the denial of information about the agenda and minutes of Cabinet meetings on technical grounds to be unacceptable. Paul said three things: first, it was wrong for the government to tell RTI applicants to collect details of Cabinet decisions from the concerned departments after the various procedures had been finished because they had no way of knowing when this would happen; two, it is the responsibility of the GAD to track the status of these procedures; and three, the GAD is legally obliged to provide information on the Cabinet’s finalized decisions.
Paul directed the government to solve the practical issues in the formal procedures instead of using them as reasons to deny information to the public. Observing that Cabinet decisions can be uploaded onto the government website immediately once the procedures over them are complete, Paul also asked why the agenda, minutes and decisions of Cabinet meetings were not properly digitized.
Instead of responding to these criticisms, the state government approached the High Court, challenging the SIC order. In response to this challenge, the High Court has stayed the SIC order and issued a notice to Binu. The court will consider the government’s petition on September 9, 2016.
What is clear from this development is the reluctance of governments to divulge details of Cabinet meetings. It will be interesting to see how the High Court views the various orders issued on different occasions by the CIC and the Kerala SIC in favour of transparency and how it reconciles these orders with the determination of the Kerala government – the current one and the earlier one - not to comply with them.