CIC’s stamp on ‘secrecy’ in Lokpal defeats ethos of RTI, SC rulings

The CIC quoting Supreme Court rulings, recently upheld the DoPT’s denial to share minutes of the meeting of the selection panel of Lokpal, even though the apex court has passed no such order neither the RTI endorses such ‘secrecy’

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The Central Information Commission’s recent order, upholding the Department of Personnel and Training’s refusal to disclose the minutes of meeting of the selection panel of Lokpal, the country’s anti-corruption ombudsman, raises doubts on the understanding of both the authorities about Supreme Court judgments and RTI laws.

The DoPT’s refusal came in response to an RTI petition filed in November 2018 by activist Anjali Bharadwaj who had sought information of records related to the process of selection of the chairperson and members of the Lokpal. The DoPT while refusing to provide minutes of the meeting of the Selection Committee, however, furnished details on dates of meetings and who attended them.

While upholding the DoPT’s decision to not disclose the minutes of the meeting, the CIC said the Supreme Court in two judgments had also refused to direct the government to furnish the said information.

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Misreading of SC judgments?

The CIC’s interpretation of the Supreme Court judgments, however, is erroneous and contrary to what the apex court ruled.

One of the cases that the CIC cited was the Supreme Court order dated February 15, 2019 in Anjali Bharadwaj vs Union of India in which the apex court directed disclosure of all details of appointment of Information Commissioners which was to be complied with by the DoPT.

The central agency, on the contrary denied sharing minutes of the Lokpal appointment, which was made by a Selection Committee, similar to the one that appoints Information Commissioners.

Another case that was cited was the Common Cause A Registered Society vs. Ajay Mittal[Contempt PET.(C) No. 714/2018 in W.P.(C) No. 245/2014], relating to the constitution of the Lokpal, wherein the Supreme Court ruled: “…So far as the prayer for putting the names recommended by the Search Committee in the public domain is concerned, we have considered the provisions of Section 4(4) of the Act and it is our considered view that no direction from the Court should be issued in this regard. Rather the matter should be left for a just determination by the Selection Committee as and when the meeting of the Committee is convened.”

A simple reading of Section 8(1)(b) [Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court] would have been sufficient to know that the disclosure of minutes of meeting was not prohibited by the Supreme Court. This decision shows that the Selection Committee, if it believes in transparency, should decide on the disclosure. There is no prohibition imposed by Supreme Court on the same.

Appellant Anjali said the contempt petition was filed when despite the court’s 2017 ruling, the Centre failed to appoint a chairperson and members of the Lokpal. She pointed out that Section 4(4) of the Lokpal Act states that the Selection Committee shall regulate its own procedure in a transparent manner for selecting the chairperson and members of the Lokpal.

But, the CIC has affixed its seal to the non-disclosure of minutes of the anti-corruption body, allowing secrecy in appointment process, much against the letter and spirit of the Right to Information Act (RTI) and good governance rules.

“As regards the minutes of the meeting it is submitted that the authorship of such documents which include three to five dignitaries does not vest in the Department of Personnel and Training and same have been shared as secret document. This copies of the said documents cannot be provided by the undersigned CPIO (Central Public Information Officer),” the DoPT’s letter said, which was upheld by the CIC.

It is unfortunate that the selection process of the Lokpal has been dubbed a ‘secret’. Secrecy breeds corruption and it is ironical that the Lokpal, which is expected to introduce transparency in all governance wings is fighting against transparency while the DoPT and CIC support the theory of ‘secrecy’.

Nowhere the order of CIC supports its conclusion that information sought by appellant is the ‘confidential’, ‘secret’ and ‘fiduciary’ in nature. One can find collegium conclusions in Supreme Court, but not details of appointment of Lokpal either from Lokpal or DoPT. The CIC has simply listed the CPIO’s illegal and illogical contentions and approved at the end, without giving any justification.

Dubious matter of authorship

While refusing to provide the minutes of the meetings of the Lokpal Selection Committee to activist Anjali Bharadwaj, the DoPT had claimed that the authorship of such documents which include three to five high-level dignitaries does not vest in the department and that the same have been shared as secret document.

This raises a fundamental question – who is the author who documents the proceedings of the Selection Committee? The documents are neither poetry nor story for someone to author. Posts are advertised, applications are submitted, and the Selection Committee takes it forward from there. None is an author or owner of a file. Any file is built on application and ends with decision. Everyone who adds a comment is a contributor and each owns it. RTI recognizes holding the file and not owning.  And the DoPT which is the nodal agency to implement RTI does not know it. Civil servants feel they are subordinate to DoPT and do not displease the boss.

The CIC has no jurisdiction or legal provision to examine the authorship of ‘file’ and deny it without referring to any clause of exception. The CIC’s judgment is a shock to RTI activists as it laid down a new precedent of rejecting the appeal though no exception is attracted.

Sealed cover, sealing transparency

The CPIO thought that confidentiality of the said record can be gauged by the fact that the averred minutes of the Selection Committee were received in a sealed cover by the DoPT and that it had been presented before the Supreme Court too in a sealed cover. The CIC did not explain why the minutes of the meeting was categorised as ‘secret’ and on what grounds? It seems it is the CIC’s unwritten rule that sealing the cover itself is ‘secrecy’ and every post and courier that goes in a sealed cover, should never be opened.

CIC Saroj Punhani understood that as the information belonged to Lokpal it would constitute ‘third’ party information with DoPT and thus the same was given in a sealed cover. It is a clear misuse of third-party provision as ‘exception’ though there are several judicial pronouncements that information could be denied only under Sections 8 and 9 of RTI Act. It also exposed the CPIO’s knowledge of RTI. The CPIO assumed that the consent of the third party is needed to reveal the information. If that is the case, he should have consulted the Lokpal to know whether or not to disclose the requested information. It is pathetic that CPIO and first appellate authority of DoPT think that because third party is a ‘higher-level” committee, the information should be totally a ‘secret’. The CIC did not bother to ask the CPIO why he did not pursue the process of consulting the third party. From CPIO of DoPT to CIC, an independent authority, they go by their own sense of transparency, ignoring the RTI Act completely.

It is surprising that even when central Cabinet decisions can be disclosed along with relevant materials on key decisions, a committee refuses to do so. Is the committee higher in level than the Cabinet? And how does ‘levels’ of authority prevent disclosability? The CIC should have answered these questions.

Another idea that the CPIO floated was that the minutes of a decision-making committee ‘is holding it in fiduciary in nature’ and hence should be denied. The CIC did not find it unreasonable.

The government was never ready to constitute the Lokpal, though the Act was passed in 2013. Even after the Supreme Court’s direction, the process did not begin. Only after a contempt petition was pressed, the Selection Committee met. The committee consists of the Prime Minister (chairperson), Speaker of the House of the People, the Leader of Opposition in the Lok Sabha, the Chief Justice of India, or a Judge of the Supreme Court nominated by the CJI and an eminent jurist, as recommended by the chairperson and other members.

As none was recognised as the Leader of Opposition (LoP) in the Lok Sabha after the 2014 elections, the committee met without the LoP and selected the chair and other members of Lokpal in 2019.

(The author is a former CIC and professor of law.)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal.)


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