Public authorities fighting to deny RTI

Fear of RTI is writ large as some of the public authorities are competing to be declared as private bodies. Loopholes in executive administration and justice administration are of great help to these sections. A stay from a High Court can help them to stay away from RTI for at least half a decade.

The law made in good faith is suffering due to actions mala fide. In these days of liberalisation, privatisation and globalisation, the government is entering into several public private partnerships, signing private deals outsourcing the activities earlier they were performing.

Section 2(h) should have covered all of these instrumentalities. When private bodies are performing public functions and public authority is facilitating it, why not those bodies be considered as instrumentalities of state and be questioned for accountability?

It is unfortunate that a public authority is fighting with public with public money to deny the information. A common man is struggling to get information, because of cantankerous litigant attitude of State, bureaucrats and public authorities.

After consuming a month, the Public Information Officer (PIO) says their organisation is not a public authority or what is sought is not information. Then litigation starts. First Appeal consumes a couple of months. Second appeal takes a couple of years.

If the Information Commission (IC) gives a direction to provide information, the public authority is taking the issue to High Court, which might give a stay. Then the information request goes into cold storage. Seeker also would forget. We know justice delayed is justice denied.

It may not be true in all cases. Example, bar dancers can dance after a decade of ban in Maharasthra. But as far as information is concerned, information delayed is information denied. Even if the appellant gets information after a year or so, it might be irrelevant or useless or obsolete. Where the PIO is sensible and the public authority is conducive to give, RTI is working. If not, it is not.

Definition of ‘public authority’ is crucial for ‘right to information.’ Basically, the public authorities who have to be answerable are Union, State Governments and Panchayati Raj institutions. This was explained by the Prime Minister while introducing the Bill: “The Bill that we have presented has the widest possible reach, covering the Central and the State Governments, Panchayati Raj institutions, local bodies as well as recipients of government grants.

Access to information under this Bill is extensive with minimum exemptions, which too can be over-ridden on the basis of a public benefit test, namely when the benefit of release of information outweighs the harm caused by disclosure of information.” This is a crucial expression a Public Authority is reflecting the legislative intent by defining it.

The Preamble says that the RTI is meant for containing corruption and to hold governments and their instrumentalities accountable to the governed. FoI( Freedom of Information) Act 2002, NAC’s (National Advisory Council) RTI Bill 2004 and RTI Bill 2004 defined public authority as follows:

Definition in Section 2(h) of RTI Act 2005

"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”

Surprisingly, the Governors, Lt Governor, Attorney General and Solicitor General converted the information requests into litigation disputing their status as ‘public authorities.’ The Office of Lt Governor claimed no accountability under the RTI in a few cases but accepted the RTI applications in most of the other cases.

Fear of RTI is writ large as some of the public authorities are competing to be declared as private bodies. Loopholes in executive administration and justice administration are of great help to these sections. A stay from a High Court can help them to stay away from RTI for at least half a decade. The law made in good faith is suffering with actions mala fide.

If an organisation is ‘substantially funded” and ‘controlled’ by state, it should be considered as public authority, as per section 2(h) of RTI Act. Honourable Supreme Court held that in case the organisation would struggle to exist if funding is withdrawn, then alone it should be considered as ‘substantial funding.’ When law used word ‘control’ of state, (without any adjective), the Supreme Court has stated that the state control should be “deep and all pervasive.”

The bench mark is raised so high that many public authorities can be declared as private bodies. With this, thousands of co-operative banks which run with public money are out of scope of accountability and transparency. There should be research and debate on this question, whether this is what law wanted? Discoms distribute electricity but refuse to come under RTI to deal with consumer’s questions. State’s 49 per cent shares do not become ‘substantial’. The RTI is threatening these corporate public servants.

In these days of liberalisation, privatisation and globalisation, the government is entering into several public private partnerships, signing private deals outsourcing the activities earlier they were performing. Section 2(h) should have covered all of these instrumentalities.

When private bodies are performing public functions and public authority is facilitating it, why not those bodies be considered as instrumentalities of state and be questioned for accountability? In Thallapallam Serv. Coop. Bank Ltd case [SLP (C) No.24290 of 2012], the Honorable Supreme Court wanted ICs to decide ‘public authority’ character of each case of co-operative society and co-operative bank, based on ‘substantive direct or indirect funding’ or ‘substantive control’ by state.

The definition of public authority mentions only ‘control’ and ‘substantive’ control is to be proved because of this order.

1.Why not the government tackle this ambiguity and make it easy to recognise the ‘public authorities’ instead of increasing the litigation?

2.Any private body dealing with public money such as co-operative society, incorporated body or association of persons be accountable? Why a Discom having 49 % shares of government and distributing electricity to consumers, be accountable to give information as instrumentality of government?

3.If state and its authorities want to go out of purview of RTI Act, how the legislative intent of RTI will be implemented?

4.Why the state’s instrumentalities performing public functions be accountable under RTI Act?

The FoI Act 2002

12. (f) “public authority” means any authority or body

established or constituted –

(i) by or under the Constitution;

(ii) by any law made by the appropriate Government, and includes any other body owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government.

NAC’s RTI Bill 2004

g) “public authority” means any authority or body established or constituted-

(i) by or under the Constitution;

(ii) by any law made by the appropriate Government and includes any other body owned or controlled by the appropriate Government and includes panchayat raj institutions and other community bodies, like district councils, and village or locality durbas, performing public functions in areas notified under schedule 5 and 6 of the Constitution.

RTI Bill 2004

g) “public authority” means any authority or body established or constituted –

(i) by or under the Constitution;

(ii) by any other law made by Parliament;

(iii) by notification issued or order made by the Government;

and includes any other body owned or controlled by the Government;

By:Madabhushi Sridhar