Mr. Kuldip Nayar vs Ministry Of External Affairs ...

on 12 April, 2010

Central Information Commission

Mr. Kuldip Nayar vs Ministry Of External Affairs ... on 12 April, 2010
Central Information Commission
CIC/AD/A/2010/000011
Dated 12.1.2010

Name of the Applicant : Mr. Kuldip Nayar

Name of the Public Authority : Ministry of External Affairs (MEA)

Date of Hearing : March 17, 2010

Decision Announced: April 12, 2010

Background

1. The Applicant filed an RTI request dated 19.08.2009 with the CPIO, MEA seeking information on
the material which the MEA possessed about the talks between the Foreign Ministers of India and
Pakistan, Swaran Singh and Zulfikar Ali Bhutto respectively held in 1963 in the wake of India- China
war in Oct 1962.

2. The CPIO, MEA responded vide a letter dated 08.10.2009 supplying copy of the statement made
by the then Prime Minister Jawaharlal Nehru on India-Pakistan talks in Lok Sabha/ Rajya Sabha on
13th Aug 1963. Being dissatisfied with the information thus provided, which was also in violation of
the time limit mandated, Applicant Mr. Kuldeep Nayar filed an Appeal before the Appellate
Authority Ms. P. Sen Vyas on 21.10.2009. The document provided by the PIO was already available
on the internet and hence the Appellant felt aggrieved at having been provided the same document
and specifically sought the material available on record with the MEA pertaining to the six rounds of
talks between Swaran Singh and Bhutto, approximately 45 years ago, information whereof,
according to the Appellant, "is available neither in the archives nor elsewhere".

3. The Appellate Authority vide communication dated 17.11.2009 disposed of the Appeal informing
the Appellant that upon re examination of his Appeal by the Ministry, it has been decided that the
information cannot be disclosed, the same being exempt under provisions of the Section 8 (1)(a) of
the RTI Act 2005. Being denied information by the Public Authority, the Appellant filed the instant
Appeal before the Central Information Commission on 22.12.2009. While reiterating the
information sought in his RTI application and enclosing all the relevant correspondences leading up
to the filing of the Appeal, the Appellant submitted that the original RTI application had been
misplaced by him and hence not annexed with the instant Appeal.

4. The Bench of Information Commissioner Mrs. Annapurna Dixit, Information Commissioner,

scheduled the hearing for February 10, 2010 and the notice dated 07.01.2010 for the hearing was
accordingly served on both parties.

5. The appeal was heard on the due date. Sh. Debraj Pradhan, JS (RTI) and Dr. K Srikar Reddy, US
(Pak) represented the Public Authority.
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6. The Applicant was present in person during the hearing.

Hearing

7. During the hearing, the Appellant elaborated his submissions corroborated by the documents
filed by him, submitting that denial of information under the garb of Section 8 (1) (a) of the RTI Act
2005 is not justified. He argued that the information sought relates to the evolution of our
international relations with our neighbouring country and therefore such information holds historic
as well as academic value for the generations to come. The Appellant further contended that the
disclosure of the information on this subject would only enhance and strengthen the position of
India in the international perspective, demonstrating the positive will of India in having initiated
dialogues and having considered the concessions during the talks with Pakistan, as are already
evident from the statement made by the then Prime Minister Jawaharlal Nehru on India- Pakistan
talks in Lok Sabha/ Rajya Sabha on 13th Aug 1963, which already exists in the public domain. The
Appellant while voicing his unequivocal concern and support for India when weighed against any
other issue, also submitted that disclosure of information as he had sought would only help
highlight India's willingness over the years to participate in dialogue, which is contrary to the stand
taken by the Respondent that disclosure of this information may adversely affect India's relations
with a Foreign State and hence cannot be disclosed under Section 8(1)

(a) of the RTI Act 2005. In fact the Appellant pointed out that a lot of such sensitive information
already exists with the journalists, and that disclosure of such information would be not only of
importance because of its academic value but also because it would lead to enrichment of the
journalists' repository owing to their heritage value. In view of the response/s received from the
Public Authority, simply categorizing the information as "confidential", the Appellant expressed his
doubt as to when the custodian of such information would consider it as the appropriate time to
divulge the information, if at all, since the gravity and sensitivity of the talks and negotiations across
the borders have persisted for more than six decades and show no definite timeline for conclusion.
Thus the Appellant summed up his contentions stating that such information which has been in
existence for more than 45 years, indicating the constructive steps initiated by our leaders, will only
aid in building the confidence of not only our own countrymen but also that of Pakistan and its
people about the goodwill of India and Indians at large, as opposed to the unfounded apprehension
of the Respondent of any possible adverse or prejudicial impact on the relations of India with
Pakistan.

8. Respondent sought to rebut the Appellant's contention stating that the information sought is
contained in old files which are classified as "Top Secret" files in view of the sensitivity of the data
contained therein. It was submitted that while approximately 1500 files pertaining to the era
between 1947-1957 had been recently declassified, the information sought contained in the file
concerned had not been one of the declassified files. The Respondent also reasoned that the only
ground for denial of such information which was contained in the files classified as Top Secret was
because the information relates a sensitive issue i.e. Kashmir which has been the subject of
discussions and dispute between India and Pakistan for decades.

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9. Considering the submissions of both the parties, and in consensus with the parties, the
Commission was of the opinion that it is time that the MEA formulate/adopt a policy for
declassification of files not merely based on the quantum of subject-wise sensitivity of information
therein but also considering the age of the document concerned, in line with the declassification
policies adopted worldwide by most other countries like US, UK etc. and also by other Ministries of
the Government of India.

10. The Appellant at this stage submitted that as an alternative, he was agreeable to explore a via
media route whereby the Commission could summon and inspect the relevant file and its contents
before deciding whether this information can be shared with the public/the Appellant or not.

11. The Commission while deciding the case at hand, considering the gravity and sensitivity of the
information discussed, decided that the matter be referred to a larger Bench for greater
introspection before arriving at a decision. Accordingly, the matter was referred to a Full Bench.

12. The Full Bench comprising of Mr. Wajahat Habibullah, Chief Information Commissioner, Mrs.
Annapurna Dixit, Information Commissioner and Mr. Satyanand Mishra, Information
Commissioner was constituted and the hearing of the matter scheduled for March 17, 2010 and the
notice dated 12.02.2010 for the hearing was accordingly served on the parties.

13. Sh. Debraj Pradhan, JS (RTI)/PIO, Sh. R Chandra, US (RTI), Sh. Gopal Baglay, Director, Sh.
Nagesh Singh, Director and Dr. K Srikar Reddy, US (Pak) represented the Public Authority in the
hearing.

14. The Applicant Mr Kuldeep Nayar was present in person during the hearing.

Issues:

1. Whether the information pertaining to the issue related to Kashmir, as contained in Pandit
Nehru's statement in the Parliament, should be classified as Top Secret documents, and sensitivity
of subject override the historical value of information which is educative for the youth of the nation?

2. Whether the information sought by the Appellant falls within the ambit of the Section 8 (1) (a) of
the RTI Act 2005 as contended by the Respondent?

3. Whether the information sought in the instant case, which refers to the six rounds of talks
between the heads of State in 1969, is covered under the continuity of exemptions beyond twenty
years of Section 8 (3) of the RTI Act 2005 ?

Hearing

15. During the hearing, the representatives of the Respondent contended that the RTI request dated
19.08.2009 was referred to their corresponding Pakistan desk seeking the relevant information
therefrom. It was only upon receipt of the relevant information from the concerned desk that the

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CPIO could furnish the response dated 08.10.2009, thus accounting for the delay in response. At
this point, upon enquiry from the bench, it transpired that Mr. Debraj Pradhan was the PIO at that
point of time.

16. The Respondent further submitted that the information sought by the Appellant herein was
contained in files classified as Top Secret files. Referring to their declassification policy, the
Respondent informed that some 1024 files had been declassified out of which 161 were "Top Secret"
files. Elaborating further about the policy of Declassification of old records which is in line with
almost all other Government Departments, the Respondent submitted that there are two ways in
which such declassification of files occur: 1) In terms of the Manual of Departmental Secrecy which
lays down the policy of declassification of files after every five years, 2) Automatic declassification of
the files by the competent authority (which happens to be the Foreign Secretary in this Ministry)
after twenty five years. The identification of files for declassification is done by the Deputy Secretary
and the same is put up to the Foreign Secretary for approval. Thus it was evident that the
Declassification policy was more procedural in nature than conceptual, being conducted by the
competent authority exercising their discretion, rather than a policy based on the substantive
subject matter of the file.

17. The Appellant Mr Nayar while addressing his arguments reiterated his questions as he had
submitted during the earlier hearing, as to when will it be considered the appropriate time to
disclose the information by the Respondent and upon denial by the custodian of these historically
relevant information, where shall a scholar procure such information from, or is this to be a merely
subjective exercise? The Appellant in fact pointed out that upon seeking the same information from
the concerned authorities in Pakistan, he had been denied the same simply because of the absence of
any such agreement between India and Pakistan to disclose the information to an Indian national as
only a Pakistani national could have access to the information. According to the Appellant, the
concerned authorities in Pakistan had no objection to part with the information, which contained
Pakistan's viewpoint. So the Appellant wondered as to why the same information was treated with
such high levels of secrecy so as to be classified as "Top Secret".

18. At this juncture, upon a query from the bench, Respondent submitted that the information
sought by the Appellant is contained in eight "volumes". It was further contended by Respondent
that all the eight volumes of file/s had been page-wise perused/scanned by the specifically deputed
officials of MEA and it transpired that the information contained therein included inter alia the
various concessions discussed during the talks held in 1963 and agreed to be provided by India to
Pakistan, which had since been withdrawn by India; the information about "negotiating positions"
between the two countries. Considering the sensitivity of the information, in view of the ongoing
talks between the two nations, Respondent opined that the said information could not be divulged at
this point of time.

19. After hearing the detailed arguments of the parties, the Commission is of the considered opinion
that the contents of the files [in the eight "volumes"] need to be revisited to decide whether all or
part of the information contained in the said files are sensitive enough to be kept confidential or
whether the same can be disclosed under provisions of the RTI Act 2005. More important, if an

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 Mr. Kuldip Nayar vs Ministry Of External Affairs ... on 12 April, 2010

exercise has indeed been undertaken for declassification as contended by respondent in the hearing,
whether a conscious decision has been taken not to declassify the information sought at a
sufficiently responsible decision making level of government and if so, the reasons for arriving at
such a decision. For this purpose, the Commission decided that the records containing the
information sought by the Appellant need to be perused by the Commission and the same be
produced before the Commission on April 29, 2010 at 4.30 P.M. (Venue: August Kranti Bhavan).

20. The Commission also directed that Show Cause notice be issued to the concerned PIO, as
referred in para 16 above, to Mr. Debraj Pradhan to explain as to why he should not be held liable
for penalty u/s 20 (1) of the Act, as the RTI request dated 19.08.09 was responded to only on
08.10.09 thereby resulting in a delay, in furnishing of response to the RTI query. Response to the
Show cause should reach the Registry of Information Commissioner Ms Annapurna Dixit by or
before the next date of hearing, on which date JS Shri Debraj Pradhan will also be provided the
opportunity to be heard in his defence.

21. The appeals are disposed of in the above terms. Copies of the decision be sent to all concerned
free of cost. Announced this on the 12th day of April, 2010 (Wajahat Habibullah) Chief Information
Commissioner (Satyanand Mishra) (Annapurna Dixit) Information Commissioner Information
Commissioner Authenticated true copy:

(G.Subramanian) Deputy Registrar Cc:

1. Mr. Kuldip Nayar D-7/2, Vasant Vihar New Delhi

2. Shri Debraj Pradhan CPIO Union Ministry of External Affairs Akbar Bhavan, Chanakyapuri New
Delhi - 110 021

3. Ms. P. Sen Vyas The Appellate Authority Ministry of External Affairs South Block, Room
No.183-A New Delhi - 110011

4. Officer in charge, NIC

5. Press E Group, CIC

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