Orders of The Court

Public Authority : S. 2(h)

Only Public Authorities are obliged to provide information to
the citizens under the RTI Act. In January 2010 under the same title, I had
written :

“Many bodies operate primarily as service to the citizens of
India, though some of them may even be commercial or business bodies. When RTI
application is received by them, they take a view that RTI Act does not apply to
them. They contend that they are not ‘Public Authority’ (PA) as defined u/s.2(h)
the Act. Basically, such bodies need to be transparent and accountable not only
to those they deal with, but to the citizens at large.”

Matter came before the High Court of Delhi in writ petition
(civil) No. 4748 as to whether National Stock Exchange of India Ltd. is Public
Authority or not. The Full Bench decision of CIC as reported earlier in this
feature, had decided that NSE, BSE and all other stock exchanges are PA.

The definition of ‘public authority’ u/s.2(h) reads as under
:

‘public authority’ means any authority or body or institution
of self-government established or constituted :

(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature; (d) by notification issued or
order made by the appropriate Government, and includes any :

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government.

S. 2(h) of the Act consists of two parts. The first part
states that public authority means any authority or body or institution of
self-government established or constituted by or under the Constitution, by any
enactment made by the Parliament or the State Legislature or by a Notification
issued or order made by the appropriate Government. The second part starts from
the word ‘includes’ and states that the term ‘public authority’ includes bodies
which are owned, controlled or substantially financed directly or indirectly by
funds provided by the appropriate Government and non-Government organisations
substantially financed directly or indirectly by funds provided by the
ap-propriate Government.

It is obvious that the term ‘public authority’ has been given
a broad and wide meaning not only to include bodies which are owned, controlled
or substantially financed directly or indirectly by the Government, but even
non-Government organisations, which are substantially financed directly or
indirectly by the Government. The idea, purpose and objective behind the
beneficial legislation is to make information available to citizens in respect
of organisations, which take benefit and advantage by utilising substantial
public funds. This ensures that the citizens can ask for and get information and
know on how public funds are being used and there is accountability,
transparency and openness. Even private organisations, which are enjoying
benefit of substantial funding directly or indirectly from the Governments, fall
within the definition of ‘public authorities’ under the Act.

The Court then has extensively discussed the meaning of words
such as ‘authority’, ‘substantially financed’, ‘body’, ‘institution’, etc. While
interpreting ‘establish’ the Court noted : “Thus, it cannot be said that the
only meaning of the word ‘establish’ to be found in the sense in which an
eleemosynary or another institution is founded. The word ‘established’ need not
mean the initial foundation and it includes creation, confirmation or
recognition.

Then interpreting the word ‘constituted’, the Court stated
that the word ‘constituted’ is wider than the ‘established’. The word
‘constituted’ in S. 2(h) of the Act not only refers to the first act/acts by
which a body or organisation is set up, but a subsequent act or acts which will
have the effect of conferring on an organisation or a body, a special status and
constitute a ‘body’ with status of an ‘authority’ or institution of
‘self-government’ for the purpose of S. 2(h) of the Act. A private institution
or a body may be incorporated or formed by acts of private persons, but
subsequent statutory enactment or an order or Notification issued by the
appropriate Government can result in constitution and conferring upon the said
body, status of an ‘authority’ or an institution of ‘self-government’.

National Stock Exchange (NSE) is a company incorporated on
27-11-1992. Reading from the objects as per its Memorandum, it is noted that NSE
was incorporated for the purpose of establishing a stock exchange for which it
was necessary and required that they should be registered and/or recognised
under the Securities Act. It is only after the registration or recognition under
the Securities Act that NSE could carry out any of the functions or objects for
which it was incorporated.

Once a body or an institution has got its
recognition/registration under the Securities Act, it can operate and function
as a stock exchange and perform the said public functions. Registration or
recognition u/s.4(3) of the Securities Act by the Central Government has the
effect of constituting or establishing an ‘authority’ or an institution of
‘self-government’ as defined u/s.2(h).

NSE also satisfies requirements of the second part of the S.
2(h) of the Act. It is a ‘body’ which is controlled by Central Government. It is
not possible to accept that the control exercised is merely regulatory and is
not a pervasive and deep control.

“The Apex Court in Unni Krishnan J.P. v. State of Andhra
Pradesh held that when a private body carries on public duty, as in the case of
an institution whereby recognitions and affiliations are to be granted with
conditions, Stock Exchanges are also recognised subject to various conditions.
Unlike the companies registered under the Indian Companies Act, the bye-laws of
a Stock Exchange can be amended. Even for amendment in bye-laws, the Stock
Exchange requires approval of the Central Government. The Central Government,
having regard to the provisions of the 1956 Act, as noticed hereinbefore, can
interfere in the functions of the Stock Exchanges at every stage.”

In view of the aforesaid findings, it is held that the
petitioner is a public authority as it is an authority or institution of
self-government constituted or established by Notification or order issued by
the appropriate Government. It is also held that the petitioner is controlled by
the appropriate Government. The writ petition accordingly has no merit and is
dismissed. However, in the facts and circumstances of the case, there will be no
order as to costs.

The above is a single-Member judgment. The same is now
challenged.

                                                Part C: OTHER NEWS

    Marathi film on RTI : ‘Ek Cup Chya’

One can’t believe that two hours’ film in Marathi language with English subtitle on RTI can be so interesting and absorbing that one enjoys every minute thereof while watching it.

It is Ek Cup Chya, a movie about the Right to Information Act (RTI) as an effective tool against injus-tice (the cup of tea, a symbol of hospitality being the metaphor for corruption here).

The storyline is simple : a humble state bus conductor is slapped with a heavy electricity bill. Humiliated by the bureaucracy, the family embarks on their quest for justice using RTI. “The film operates at two levels,” informs the producer. “As a family drama and as pure information. A lot of research has gone into it with inputs from activists like Aruna Roy, Arvind Kejriwal etc.”

I was the chief guest at its screening at SP Jain Insti-tute of Management on April 28. Hopefully, I shall arrange its screening in due course for all interested in watching it.

    Assets disclosure by MPs :

At least 70 Lok Sabha MPs, including former Prime Minister HD Deve Gowda, Rashtriya Janata Dal (RJD) chief Lalu Prasad and cricketer-turned-politician Navjot Singh Sidhu, have not yet disclosed details of their assets, a Right to Information (RTI) application has revealed.

The information was obtained in reply to an application filed by RTI activist Subhash Chandra Agarwal with the Lok Sabha Secretariat, seeking names of the members who have not disclosed details of their assets and wealth to the speaker.

“No action has so far been taken against defaulting members . . . . the reason for not taking any action against those Lok Sabha members who have not submitted details of assets and liabilities to the Lok Sabha speaker is the non-receipt of any complaint from any other member or any citizen of India in this regard as required under Rule 5(1) of the members of the Lok Sabha (Declaration of Assets and Liabilities) Rules, 2004.”

    Legalising alterations to the buildings :

All is not fine with the fines collected by various civic authorities in Mumbai as an RTI application filed by activist Aaftab Siddique reveals.

The building proposal department in ward H West has collected over Rs.32.25 crore between 2007 and 2009 as fine to legalise alterations, after submitting the floor plans and drawings for approval. The health department has collected fines of Rs. 33.72 lakhs only between 2000 and 2009 while the licence department has collected barely Rs.3 lakhs in the same period.

    Dues to retirees at BMC :

Data procured under RTI from various departments of the Brihanmumbai Municipal Corporation (BMC) show that dues to the tune of Rs.30.41 crore is yet to be paid to those who retired over the past four years.

RTI activist, Mr. Milind Mulay, had filed a query under RTI. When he checked with many officers at the ward level, they were not even aware of the number of people who have retired from their office in the last four years. He writes : “My mother, Vijaya Mulay retired as a nurse from the Marol Maternity Home, but the BMC made her run around for almost one year and a half and even after that, she did not get her dues. She then used the RTI Act to get her file moving.”

    Red tape at BMC :

One Mr. Sharad Jadhav has been complaining about the irregularities in awarding a licence to a café located in one of the by-lanes of Dongri in south Mum-bai. Not getting a response, Jadhav finally wrote to the state Anti-Corruption Bureau (ACB). The bureau forwarded the complaint to the Municipal Commissioner for verifying the ‘allegation’ that the civic officials had turned a Nelson’s Eye to Sadguru Café’s illegal construction.

When no action was forthcoming from BMC, Jadhav filed an RTI application to find out about the status of his complaint. Reply received stated : “The BMC cannot give information on the subject as it never received any such letter from the ACB office.” After much criticism in the media, the police officials finally claimed that they had ‘found it’.