Emperical Research on RTI in CIC

EMPIRICAL RESEARCH ON RTI IN CENTRAL INFORMATION COMMISSION

Subject Title: Administrative Law

Submitted to: Dr. J.S. Mann

Submitted by: Suman Das 66/11

2013

Third Year

Fifth Semester

National Law University, Delhi

CONTENTSChapter I: Introduction............................................11. Overview......................................................1

2. Review of Literature..........................................13. Research Questions............................................3

4. Hypothesis....................................................35. Objective of Research.........................................3

6. Rationale of Research.........................................37. Research Methodology and Design...............................3

8. Scheme of research............................................4chapter II: Theoretical analysis...................................5

chapter III: Empirical analysis...................................10Chapter IV- Recommendations and Suggestions.......................12

Bibliography......................................................13Annexure I…………………………………………………………………………………………………………………………………….…14

CHAPTER I: INTRODUCTION

1. OVERVIEW

The Right to Information Act, 2005 came into force after the

Freedom of Information Act, 2002 was repealed. This act came

in with the basic objective to promote openness, transparency

and accountability in administration.1 In the case of S.P.

Gupta v. President 2of India, the Supreme Court first mentioned

that

“The right to know, receive and import information has

been recognised within the right to freedom of speech and

expression. A citizen has a fundamental right to use the best

means of imparting and receiving information and as such to

have an access to telecasting for the purpose.”

Thus, the right to information has been considered as a basic

feature of the Constitution fundamental right under article 19

(1). Corruption which had taken root at all levels of

governance had prevented a clear and uninhibited flow of

information from the state to the government.

Unlike many other countries (for e.g. UK) which took several

years to operationalise the Act post the enactment, India took

only a few months to bring it into force.3 This time was

1 Subhash C. Kashyap, Constitutional Law of India, 3rd Ed, Volume 2, 2008, pp 735-950.2 AIR 1982 SC 149.3 Key Issues and Constraints in implementing the RTI Act, Final Understanding the “Key Issues and Constraints” in implementing the RTI Act,PricewaterhouseCoopers, p. 37.

1

inadequate to change the mindset of the people in Government,

create infrastructure, develop new processes and build

capacity to deliver information under this Act.4

Thus, the aim of the paper is to see if there are any

shortcomings to the RTI Act and what can be done to mend the

loopholes left by the legislature.

2. REVIEW OF LITERATURE

To make this paper the researcher has used the help of various

books, articles and cases to come up with a suitable research

and a conclusive answer

Books & Articles

a) Subhash C. Kashyap, Constitutional Law of India, 3rd Ed,

Volume 2, 2008, Wadhwa and Wadhwa, Nagpur.

b) Key Issues and Constraints in implementing the RTI Act,

Final Understanding the “Key Issues and Constraints” in

implementing the RTI Act, PricewaterhouseCoopers.

c) Final Understanding the “Key Issues and Constraints” in

implementing the RTI Act, PricewaterhouseCoopers,

Annexure I.

d) RIGHT TO INFORMATION- A STUDY, Orissa Review, Nov.,

2006.

e) http://rajyasabha.nic.in/rsnew/Parliament_of_India.pdf.

f) Abhinav Garg, Private schools fall under RTI: Court,

Times of India, Published on May 3, 2013, 02.45AM IST,

4 Ibid.

2

accessed at

http://articles.timesofindia.indiatimes.com/2013-05-03/ne

ws/39008319_1_ews-quota-private-unaided-schools

g) Press Release by Ministry of Personnel, Public Grievances

& Pensions, Amendment to the Right to Information Act,

2005, Accesed at http://pib.nic.in/newsite/erelease.aspx?

relid=97577.

h) Guide For Public Authorities, accessed from

http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02rti

/1_4_2008_IR(Eng).pdf

Cases

a) S.P. Gupta v. President AIR 1982 SC 149

b) Tamil Nadu Road Development Co. Ltd. Vs. Tamil Nadu

Information Commission and Anr (2008) 145 CompCas

248(Mad)

c) Ravneet Kaur v. The Christian Medical College AIR 1998

P&H 1

d) D.A.V. College Trust and Management Society and Ors. Vs.

Director of Public Instruction and Ors AIR2008P& H117

e) Chandigarh University, Village Gharuan v State of Punjab

& others AIR 2013 P&H 187

f) Shri Nisa Ahmed Srika and others v. LIC housing Finance

Limited and Others CIC/AT/A/2007/0735, 729, 1370

and .CIC/AT/A/2008/1420

g) Shri Subhash Chandra Aggarwal and Anr v. Indian National

Congress/ All India Congress Committee (AICC) and Others

CIC/SM/C/2011/001386.

3

3. RESEARCH QUESTIONS

What is the scope of Public Authority under section 2

(h)? Should political parties be included under the scope

of Public authority?

4. HYPOTHESIS

The researcher thinks that the scope of public authority

can be expanded through interpretation and should be

expanded to cover all possible public bodies.

5. OBJECTIVE OF RESEARCH

a. To see how the scope of “public authority” is

expanding and why there is a need to expand this

word.

b. To see why political parties should come within the

scope of “Public Authority”

6. RATIONALE OF RESEARCH

The reason why the researcher took such an endeavour because

as much as understanding the efficacy of the Act is essential,

an even more essential aspect is to understand how people

perceive the Act and use it to promote transparency and

accountability in the governance of this country. The

rationale of this paper is to see whether people have

understood the right that has been conferred on them and are

they using it to their best advantage or not. On the flipside,

the researcher will also look at whether the PIOs and the

4

CPIOs are carrying out the task mandated to them correctly or

not.

7. RESEARCH METHODOLOGY AND DESIGN

The researcher has adopted an empirical as well as a

descriptive methodology of research. Under the descriptive

head, the researcher has delved into the theoretical aspect of

Right To Information with respect to the scope of “Public

Authority” under section 2(h) of the act and has taken help of

various case laws to establish her point. Under the empirical

head, the researcher has used the data collected by the

researcher from the Central Information Department from Jule

2012 to December 2012. This has provided the researcher with

the requisite data to identify the problems which a PIO and

ordinary citizens faced while dealing with questions sent

addressing the identification of Public Authroity.

8. SCHEME OF RESEARCH

Chapter I of this research constitutes a brief introduction

with respect to the Right to Information Act, 2005 and

demarcates the scheme and methodology of research along with

other things. Chapter II is a descriptive section which talks

about the various provisions of the Act in play with respect

to the research question and what is the judicial discourse on

the same. Chapter III on the other hand, is a small empirical

study which will with the help of graphs tabulate and analyse

what are the problems with the first appeal aspect of RTI,

Act, if any. It will further conclude the paper with possible

suggestions for rectifying the problem. The Annexure attached5

shows the filled up questionnaires used for empirical

research.

6

CHAPTER II: THEORETICAL ANALYSIS

The Right to Information Act, 2005 has defined public

authority in section 2 (h). It defines it

“as 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” 5

As per the definition, the scope of public authority is

extended to those institutions created for self governance

under the constitution like the Election Commission of India,

the Finance Commission, National Commission for SC’s. etc. It

then defines that any other body made by the Parliament will

also come within the scope of Public Authority. This includes

any Government Ministry / Department, the functioning of the

Secretariats of Parliament, in particular and those of the two

Houses which will be under public scanner.6

5 Right To Information Act, 20056 http://rajyasabha.nic.in/rsnew/Parliament_of_India.pdf

7

Further, the act states that any institution created by state

legislature by passing a law. This shall include all the

bodies that come into framework under the state list mentioned

in the Constitutions, such as the Public Works Department, the

Municipality Department, etc.

The next provision i.e. clause (d) (ii) is fairly clear that

Non-Governmental organisations receiving aid from the

government will come under the purview of ‘Public Authority’

as mentioned in Right to Information Act, 2005.

The above three provisions are fairly clear of what comes

under Public Authority. But, most of the confusion arose with

clause (d) (i) which harbours bodies that are owned,

controlled and substantially financed, more so with the last

one. There has been a lot of debate over what to include or

exclude under the heading of ‘Substantially Financed’.

In the case of Tamil Nadu Road Development Co. Ltd. Vs. Tamil

Nadu Information

Commission and Anr7, the High Court of Madras has given

particular emphasis on the inclusive definition of “Public

Authority” as defined under Section 2(h) of the RTI Act and

has observed that under the well-known covenants of

construction of purposive interpretation, the term “Public

Authority” under Section 2(h)(d)(i) must be given a liberal

interpretation so that the authorities like the appellant

company who are owned, controlled and substantially financed

directly or indirectly by the Government come within the

7 (2008) 145 CompCas 248(Mad)8

purview of the RTI Act.

Over the years since its inception, the scope of

“substantially financed” has been increasing by interpretation

provided by CIC and other State Information Commissions.

Parties have been filing various applications which requires

information regarding bodies which seems to overlap the

definition.

In the recent past, there has been many confusion regarding

whether aided and unaided educational institutes should be

included under the purview of RTI. In the case of aided

educational institutes, many high courts have accepted that

they do come under the purview of public authority.

The case of Ravneet Kaur v. The Christian Medical College8

examined the question as to whether the functions discharged

by a private body are public functions or private functions.

It was established that once the institutions are performing

public functions affecting the life of a huge segment of the

society and in addition are receiving substantial grant-in-aid

then it cannot be argued that it is not a 'public authority'.

Following this case, in D.A.V. College Trust and Management

Society and Ors. Vs. Director of Public Instruction and Ors9,

the High Court looked into the management of the Trust and

found that they were funded by the government got 95% grant-

in-aid for their administration and hence it comes under the

purview of Public Authority as described in the Act.

8 AIR 1998 P&H 19 AIR2008P& H117

9

Thus, any aided institution will come under the scope of

‘Public Authority’, as explained in the act.

There is still an ongoing debate as to if the unaided

educational institutions come under the definition of public

authority or not. Various High Courts maintained that they do

not come under it. But, in a recent judgement, the Delhi High

Court said that private unaided educational institutions came

under the purview of the RTI Act, but there are certain

limitations to that. The court gave some interim relief to the

schools and said that the information sought is relevant to

the extent of admissions in schools. They were exempted from

making public budget estimates of receipts, payments of the

ensuing year, final accounts and the statement showing

disbursement of salaries.10

Thus, at present, private unaided schools come under the

definitions of Public Authority only to the extent of

admission.

In a judgement by the Punjab and Haryana High Court, in the

case of Chandigarh University, Village Gharuan v State of

Punjab & others11 the court has ruled that private institutions

also come under the ambit of RTI act. The court relied on the

definition of Public Authority to come to this conclusion.

10 Abhinav Garg, Private schools fall under RTI: Court, Times of India, Published on May 3, 2013, 02.45AM IST, accessed at http://articles.timesofindia.indiatimes.com/2013-05-03/news/39008319_1_ews-quota-private-unaided-schools, on 25th November, 2013.11 AIR 2013 P&H 187

10

Moving further, The CIC in the case of Shri Nisa Ahmed Srika

and others v. LIC housing Finance Limited and Others12 said

that bodies like LIC where government has higher financial

control comes within the ambit of the Public Authority. While

coming to this decision, they relied on article 12 of the

Constitution which defines the term “state”. The commission

said that a body where majority share is with the government

can come under the ambit of state. Thus accordingly, LIC, GIC

and such other bodies comes under the definition of “Public

Authority”.

Even PSU’s which are substantially funded comes under the RTI

Act. Though there need not be any kind of Public Information

Officer appointed. One can direct the RTI to the shareholding

government body who will in turn direct it to the private

party. The same logic holds for other private parties.

Recently, one of the CIC judgment created a spur when it

declared that political parties should be considered under the

ambit of the RTI Act. In the case of Shri Subhash Chandra

Aggarwal and Anr v. Indian National Congress/ All India

Congress Committee (AICC) and Others13, it was held that

political parties satisfies the necessary requirement of the

Right To Information Act and hence it should come under the

purview of “Public Authority” and accordingly supply

information when sought.

12 CIC/AT/A/2007/0735, 729, 1370 and .CIC/AT/A/2008/142013 CIC/SM/C/2011/001386.

11

The court laid down various ground on which political parties

were considered as a part of “public authority”. It held that

the mentioned political parties

“have been substantially financed by the Central Government under section 2(h)(ii)

of the RTI Act.” It further stated that “the criticality of the role being played by these

political parties in our democratic set up and the nature of duties performed by

them also point towards their public character, bringing them in the ambit of

section 2(h). The constitutional and legal provisions discussed herein above also

point towards their character as public authorities.”

It said that Political Parties are Substantially Financed by

the Central Government because there was indirect financing of

Political Parties by allotment of large tracts of land to them

in prime areas of Delhi or state capital either, free of cost,

or at concessional rates. There was accommodation facility at

concessional rates and there was total tax exemption.

Moreover, they play a critical role in our democratic set up

and the nature of duties performed by them also point towards

their public character, bringing them in the ambit of section

2(h). These are the unique institutions because inspite of

being non-governmental, they come to wield directly or

indirectly influence on the exercise of governmental power. It

would be odd to argue that transparency is good for all State

organs but not so good for Political Parties, which, in

reality, control all the vital organs of the State.

Also, the Constitution mandates the recognition of these

organisation by terming them as association once they are

12

registered and by recognizing their rights under chapter XV of

the Constitution. 14

Although the CIC directed the parties to appoint CPIOs within

a period of six months, nothing as such happened. The

researcher of this paper is of the view that the political

parties should come under the ambit of RTI Act for

transparency of information. A large portion of the assets

that these parties hold are not accountable. In order to

neutralise the CIC’s decision’s effect, the Parliament came up

with an amendment to the Act15 which stated that because there

are provisions under the Representation of People’s Act, 1951

to know about the assets of the political parties, there need

not be any more inclusion under the said act. Though the bill

is under discussion now certain pertinent points are to be

considered.

The RTI Act was framed to bring in transparency to the

governance of the country. Political parties are the most

important part of the governance of the country and without

them, the governance will fail. In such a case, bringing them

under the purview makes sense because if you are serving the

country, then the country needs to know how you function.

Every citizen is well aware of what the scenario is. There

ought to be change brought in it. Political Parties are of the

opinion that bringing them under RTI will be complicated and

would hamper the functioning of the government. But one needs

14 Id.15 Press Release by Ministry of Personnel, Public Grievances & Pensions, Amendment to the Right to Information Act, 2005, Accesed at http://pib.nic.in/newsite/erelease.aspx?relid=97577.

13

to remember that the RTI Act does not give blanket power to

the citizens. It also has certain limitations. Transparency is

for the smooth running of the governance and for proper

knowledge with the citizens. There is a provision under the

act which denies any information that can harm other’s freedom

of life and liberty. But again, if the information is for

larger good, then it should be provided.

Thus, political parties should come under the ambit of “Public

Authority” in the RTI Act, 2005.

14

CHAPTER III: EMPIRICAL ANALYSIS

The researcher shall explain that most people asked for

information which they thought were related to “public

authority”, but they were in fact either third party or a

private institution.

The lay-men’s understanding of “public authority” is any

governmental authority that comes within the description of a

“government body”. They are not very clear as to which bodies

comes under public authority and which does not.

The period of research conducted by the researcher was from

July 2012 to December 2012. Evidently, this period was prior

to the landmark judgement of the CIC on political parties.

While conducting the empirical research, the researcher came

across various applications where the information sought was

either regarding a political party, or regarding a private

body which was replied by the PIO as “not covered” under the

ambit of the RTI Act. In case of private bodies, many

informants were seeking information to know as to which bodies

came under the ambit of private bodies and which did not, so

that they can proceed accordingly.

The replies of the PIOs were also not that clear because they

themselves were not much aware as to if there can be any

interpretation of the word “Public Authority”, and hence,

15

accordingly, they said that the information cannot be

disclosed as they did not come within the ambit of the RTI

Act. For example, as per section 2 (f), information related to

private bodies can be given if it can be accessed by the

government. But, there was a confusion amongst the PIO’s also

that if they had to address it, then to whom should they

address?

In the following graph shows the percentage of information

sought against public authority, private institutions and

third party.

Public Auth...

Private In...

Third ...0

5

10

15

20

25

Number of Informants

In the given chart we see that most people asked for

information regarding public authority, which will definitely

be evident. But, the fact that most people had no clue whether

a particular authority comes under private institution or

which private institution gives information to the government,

cannot be overlooked. We have to understand that there needs

more interpretation of the term “Public Authority” and as such

pave a path for transparency.

16

17

CHAPTER IV- RECOMMENDATIONS AND SUGGESTIONS

From the above discussion it is clear that the scope of Public

Authority is still widening. It’ll take some time to include

and interpret the words. In order to increase the speed of

such interpretation and provide the information to the people,

the researcher would like to suggest the following

recommendations.

1. The government should try and interpret the word as much

as possible. It should not wait for appeals to flood the

CIC for such interpretation

2. The government should publish its interpretations in a

form of digest so that people do not get confused. Doing

this will also diminish the hassle both the PIO and the

Public has to face.

3. There should be a clear definition on all those who come

under the Private institutions and a list should be

maintained in every office as to which private

institution is under the ambit of the RTI Act and to what

extent.

In case of political parties coming under the ambit of RTI,

the researcher is of the view that it should. The amendment

bill should not be passed on the sole ground of some overlap

of statute. There should be strict implementation of the act

so that people can know who is ruling them and how they can be

18

ruled in a better manner. If countries like Burman and Nepal

can do it, then so can India.

19

BIBLIOGRAPHY

Books & Articles

i) Subhash C. Kashyap, Constitutional Law of India, 3rd Ed,Volume 2, 2008, Wadhwa and Wadhwa, Nagpur.

j) Key Issues and Constraints in implementing the RTI Act,Final Understanding the “Key Issues and Constraints” inimplementing the RTI Act, PricewaterhouseCoopers.

k) Final Understanding the “Key Issues and Constraints” inimplementing the RTI Act, PricewaterhouseCoopers,Annexure I.

l) RIGHT TO INFORMATION- A STUDY, Orissa Review, Nov.,2006.

m) http://rajyasabha.nic.in/rsnew/Parliament_of_India.pdf.n) Abhinav Garg, Private schools fall under RTI: Court,

Times of India, Published on May 3, 2013, 02.45AM IST, accessed at http://articles.timesofindia.indiatimes.com/2013-05-03/news/39008319_1_ews-quota-private-unaided-schools

o) Press Release by Ministry of Personnel, Public Grievances& Pensions, Amendment to the Right to Information Act, 2005, Accesed at http://pib.nic.in/newsite/erelease.aspx?relid=97577.

p) Guide For Public Authorities, accessed from http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02rti/1_4_2008_IR(Eng).pdf

Cases

h) S.P. Gupta v. President AIR 1982 SC 149i) Tamil Nadu Road Development Co. Ltd. Vs. Tamil Nadu

Information Commission and Anr (2008) 145 CompCas248(Mad)

j) Ravneet Kaur v. The Christian Medical College AIR 1998P&H 1

20

k) D.A.V. College Trust and Management Society and Ors. Vs.Director of Public Instruction and Ors AIR2008P& H117

l) Chandigarh University, Village Gharuan v State of Punjab& others AIR 2013 P&H 187

m) Shri Nisa Ahmed Srika and others v. LIC housing FinanceLimited and Others CIC/AT/A/2007/0735, 729, 1370and .CIC/AT/A/2008/1420

n) Shri Subhash Chandra Aggarwal and Anr v. Indian NationalCongress/ All India Congress Committee (AICC) and OthersCIC/SM/C/2011/001386.

21