Section 2(h): Public Authority:
When some citizens sought certain information from Shikshan Prasarak Mandali Trust (SPM), it responded by taking the stand that SPM is not falling within the definition of Public Authority. The contention of SPM was:
“The argument is that the Trust is not a public authority within the meaning of Section 2(h) of the RTI Act. An Educational Institution, managed and administered by the Trust receives the grants and assistance from the Government. It is at best that Institution which can be said to falling within the definition of the term ‘public authority’ but certainly this will not take within its import or fold the public charitable trust which merely manages and administers the Educational Institution. A public charitable trust pure simple cannot be said to be a public authority under the RTI Act. It cannot be said to be an Authority or body owned or controlled by the State Government.”
The Contention of Maharashtra Information Commission was:
“The term “public authority” as defined in the RTI Act, would make it clear that first part of it clarifies that all statutory bodies and authorities would be covered and the latter part of it includes bodies owned, controlled or substantially financed by the government. Now, when non-Governmental organisations, substantially financed directly or indirectly by funds provided by the appropriate government are brought within the ambit and purview of the RTI Act, then, all the more a conclusion is inescapable that the petitioner trust’s plea could not have been entertained. It is reading the Act as if it applies to an activity or function of a public trust but it will not apply to that public trust even if that activity or function is being performed under its auspices or control. If every single Educational Institution is established, managed, administered and controlled by the public trust or societies or bodies of the present nature, then, a defence will always be raised to resist the application of the Act by urging that the Act will apply to its activity or function and not to it. This will defeat and frustrate the Act. It would run counter to the Legislative intent in making all such bodies, organisations, including non-Governmental ones, accountable and answerable to the public. For all these reasons, it was submitted that the petition be dismissed.
Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society and the Parliament. In its wisdom, the Parliament has chosen to exempt only certain categories of information from disclosure and certain organisations from the applicability of the Act.”
The HC quoted some paras from the judgment of the Supreme Court in case of Institute of Chartered Accountants vs. Shaunak H. Satya reported in A.I.R. 2011 S.C. 3336, [ RTIR IV (2011) 82 (SC)] In that context and dealing with some of the provisions of the Act, it was held as under:
“The information to which RTI Act applies falls into two categories, namely
(i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption. Enumerated in clauses (b) and (c) of Section 4(1) of RTI Act. and
(ii) other information held by public authorities not falling u/s. 4(1)(b) and (c) of then RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information wide suo motu to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated u/s. 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a proactive manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But with regard to other information which does not fall u/s. 4(1)(b) and (c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure.
One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the Government and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. The object of RTI act is to harmonise the conflicting public interest, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which includes efficient functioning of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9 10 and 11 seek to 0achieve the second objective. Therefore, when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfillment and preservation of democratic ideals. Therefore, in dealing with information not falling u/s. 4(1)(b) and (c), the competent authorities under the RTI Act will not read the exemptions in Section 8 in a restrictive manner but in a practical manner, so that the other public interests are preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other public interests.” “Among the ten categories of information which are exempted from disclosure u/s. 8 of the RTI Act, six categories which are described in clauses (a), (b), (c), (f), ( g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption for a specific period, with an obligation to make the said information public after such period. The information referred to in clause (i) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship referred to in clauses (d) and (e) of Section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that exempted information should be disclosed in larger public interest.”
H.C. then gave meaning to certain words/ terms covered in Section 2(h), e.g. ‘established’, ‘constituted’, ‘owned’, ‘controlled’ or ‘substantially financed by funds provided directly or indirectly.’
The word “established” means “to bring into existence” whereas the word “constituted” does not necessarily mean “created” or “set up” though it may mean that also. The word is used in a wider significance and would include both the idea of creating or establishing and giving a legal form to the body (see A.I.R. 1959 S.C. 868 M/s. R.C. Mitter and Sons vs. Commissioner of Income Tax, West Bengal). It includes in the later part “any body owned, controlled or substantially financed” and equally a non-Governmental organisation, sub-stantially financed directly or indirectly by funds provided by appropriate government. Thus, any body owned, controlled or substantially financed is being brought within the net and purview of the definition so as to clearly set out its duty and obligation to provide information and thereafter, make it possible for the citizens to enforce it. It is very clear that the Legislature did not exhaust itself but included bodies owned, controlled or sub-stantially financed, directly or indirectly by funds provided by appropriate Government. Therefore, to urge that there is no control over the public charitable trust by the appropriate government or if at all there is any control or the element of public dealings come in, that is only in relation to Educational Institutions which are run, administered and managed by the Trust is nothing but an attempt to escape from being covered by the Act and complying with its mandate. A definition as inserted and worded in Section 2(h) of the RTI Act can safely be termed as partly exhaustive and partly inclusive. The choice of words as noted above would mean enlarging the meaning of the words or phrases occurring in the statute.
HC further noted:
“A citizen is not expected to indulge in futile litigation and endless chase in overcoming technical hurdles and obstacles for seeking information. Public authorities are not obliging him by giving him information because the rule of the day is transparency, accountability in public dealing and public affairs and in relation to public funds. In cases of present nature, the information can be sought by approaching both the educational institutions and the parent entity controlling them or either. However, the duty and obligation to provide information as long as the right to seek it is enforceable by the RTI Act must be discharged by the Public Authority. In this case, it is the petitioner Trust.”
For the reasons aforestated, this petition fails, Rule is discharged without any costs. The finding and conclusion that the RTI Act is applicable to the petitioners and they are obliged to provide information in relation to its educational institutions is confirmed.
[Shikshan Prasarak Mandali vs. Maharashtra SIC & ors. Writ petition decided on 18.10.2012] [Citation: RTIR I (2013) 234 (Bombay)]
