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Minister is a Public Authority

Minister is a Public Authority
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Following constitutional and legal provisions establish how a Minister is an authority constituted ‘by and under the Constitution.’  Article 74 says...

The Minister’s privileged issues, if any, are rightly excluded by the exceptions in RTI Act, such as Section 8(1)(a), (c), (f), (i). The proviso at the end of the section 8(1) which says “the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person” makes it clear wherever Minister is answerable to Legislators, he can also answerable to the ordinary citizen. The ‘Minister’ is an institution within the scheme of the democratic Constitution. Minister himself is public authority and as he is associated with and assisted by an office, he cannot escape from answerability under RTI Act

Besides ministry, the Minister also should be answerable under the Right to Information Act 2005. Section 2(h) of Right to Information Act says: "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 organization substantially financed, directly or indirectly by funds provided by the appropriate Government

Following constitutional and legal provisions establish how a Minister is an authority constituted ‘by and under the Constitution.’ Article 74 says there shall be a Council of Ministers to aid and advise President. Article 75 says that Ministers shall be appointed by the President on the advice of Prime Minister. Article 75(2) says that the Minister shall hold the office during the pleasure of the President. This signifies the pervasive control of government over their functioning, which is prerequisite to declare an authority as ‘public authority’ as ordained by Hon’ble Supreme Court in Thallapalam Cooperative Bank case in 2013.

Minister’s salaries are determined by law made by Parliament from time to time by law – the Salary, Allowances and Pension of Members of Parliament Act, 1954. This is another characteristic that makes Minister a public authority. Similarly, regarding the Council of Ministers in States, the Articles 163 and 164 provided for the appointment and salaries of the Ministers. Each member of Council of Ministers both at State level and Union is provided with the office, sufficient staff and other resources and infrastructure. Some senior scale civil servants also serve them.

Entire expenditure of provision and maintenance of the office along with salaries to the staff members is borne by the government and paid from the tax-payers money. Without being an MP or MLA, one cannot hold office of the Minister in the Council of Ministers. The Representation of People Act, 1950 is enacted to provide the allocation of seats in, and the delimitation of constituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, and the manner of filling seats in the Council of States to be filled by representatives of Union territories.

Thus this law made by Parliament explains how the office of MP or MLA has been instituted to become Minister, which also a public authority. Representation of People Act, 1951, was enacted to deal with the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections.

The Member of Parliament or Legislature is declared as a public servant in PV Narasimha Rao v State, by the Supreme Court of India in 1998. The Ministers have public duties to perform and they too have certain privileges prescribed under the Constitution under Article 105. The Constitution in several other articles prescribed similar duties for MLAs in State legislatures. Tenth Schedule explains the disqualification process for legislators, which means they have a duty not to defect to a party different from the party from which he or she was elected as a representative of people who voted for them.

The Salary, Allowances and Pension of Members of Parliament Act, 1954 provides for payment of salaries and pension throughout the life from the state exchequer besides several allowances. Representative of Peoples Act explains that ‘member’ includes “Minister.” This Act also provides for Free Transit by Railway (S 6), Free Transit by Steamer (S 6A), Air travel facilities (S 6C) etc, besides travelling allowances, daily allowances, etc. They get free travel pass in A/C Train compartments for accompanying person also. Under Section 8 they are entitled to Constituency allowance also. According to Section 8A, travel facilities are provided to ex-members also.

Article 75(3) says the Council of Ministers shall be collectively responsible for the House of the People. For the decisions taken in the Cabinet Meeting, whether good or bad, moved by one individual or two, it will become decision of the entire cabinet, once approved, and makes all together responsible. However it does not exclude individual minister’s responsibility as overall in charge of a portfolio and independent decision maker in that area.

The Minister’s privileged issues, if any, are rightly excluded by the exceptions in RTI Act, such as Section 8(1)(a), (c), (f), (i). The proviso at the end of the section 8(1) which says “the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person” makes it clear wherever Minister is answerable to Legislators, he can also answerable to the ordinary citizen.

The expression “authority” would also include all persons or bodies that have been conferred a power to perform the functions entrusted to them under the Constitution and merely because the Ministers are individuals, the same would not render the office of the Cabinet Minister any less authoritative than other constitutional functionaries.

The expression “authority” as used in Section 2(h) cannot be read as a term to exclude bodies or entities which are, essentially, performing functions in their individual capacity. It would encompass any office that is conferred with any statutory or constitutional power. Indisputably, the appointee to that office is, by virtue the constitution, vested with the authority to discharge those functions.

The probable claim that Cabinet Minister does not have the necessary infrastructure to support the applicability of the RTI Act in as much as, the Minister is a singular person office and, therefore, would have to act as a CPIO as well as the Appellate Authority and hence cannot be held as ‘Public Authority” is not tenable. If lack of infrastructure is prescribed as the criteria for imposing transparency obligations, then none would be obliged to inform.

That was never the intention of the RTI Act. It is quite relevant to quote the Judgment of Delhi High Court in W.P.(C) 1041/2013 in the case of S.C. Agrawal Vs. Office of the Attorney General of India, dated 10.03.2015 where court observed, “it has been contended that there would be a practical difficulty as the office of the Attorney General is only a skeletal office which only consists of the appointee and the appointee’s is personal staff. In my view, this cannot be considered as a reason for excluding the applicability of the Act on a public authority.”

The Ministers debate the issues in the cabinet meetings and their collective opinion in the form of advice to the President or Governor is crucial in governance. President or Governor is a nominal head while executive head of each department is the Minister. They sanction for several state development activities and introduce people welfare schemes involving huge amounts.

They are answerable to the Houses of Parliament and Legislature, being the representatives of the people. The Ministers are responsible individually to lead their departments/ministries and are also answerable to Legislature. They are expected to provide much needed leadership to the department taking assistance from the senior civil servants. The Constitution has entrusted the Ministers with higher powers and responsibilities over and above the IAS and IPS officers.

No honest and sincere minister would refuse to inform the people who elected him/her. The ‘Minister’ is an institution within the scheme of the democratic Constitution. Minister himself is public authority and as he is associated with and assisted by an office, he cannot escape from answerability under Right to Information Act.

(Based on decision in Hemant Dhage, Ahmednagar Vs. Department of Legal Affairs, GOI, CIC/SA/A/2015/000435 on 12.2.2016)

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