NGOs are within the ambit of RTI Act, 2005

Anand sen | Gujarat National Law University | 15th June 2020

DAV College Trust and Management Society vs Director of Public Instruction

Facts of the Case 

In this case, the matter of fact and issue raised was that some range of school and colleges which were controlled under DAV college trust and management Society as NGOs they did not constitute public authorities and were therefore not answerable and subject to the Right to Information Act’s record keeping and disclosure requirements. The judgement given by Hon’ble Court was a landmark judgement which explains and clarifies the domain of the Right to Information Act and it decided the matter of fact that whether Non-governmental Organisations are covered in RTI Act or not, because RTI act broadly says that it covers only Governmental organisation. Further, The Court has to determine whether the appellants in this case were substantially funded by the government or not.

Issue Raised

1. Whether non-­governmental organisations substantially financed by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005.    

Holdings 

The Hon’ble Supreme Court of India in the said judgement stated that non-governmental organizations financed substantially directly or indirectly, by the appropriate government will fall within the ambit of ‘public authority’ under section 2(h) of the Right to Information Act, 2005.

Reasoning

Hon’ble Justice Deepak Gupta and Justice Aniruddha Bose referred to the case law, P. Kasilingam v. P.S.G. College of Technology & Ors.^[1] which dealt and gave clarification with the interpretation of the words “means and includes” in a definitional clause. In the present Case, The Supreme Court of India juxtaposed the use of the word “means” in Section 2(h) of RTI Act which indicated “exhaustive and complete” definitions of the first four categories of public authorities, with the word “includes” which was mentioned in second part of the Section, which indicated that the legislature intended the last two categories of public authorities to be interpreted more broadly. As a result, the Court found that sub-clauses (i) and (ii), which defined bodies and NGOs owned, controlled or substantially financed by the Government, to form separate categories of public authorities.

Next, Thalappalam Service Cooperative Bank Ltd. and Ors. v. State of Kerala and Ors.^[2] was used because it assessed whether cooperative societies would fall within the ambit of the Act. In para 32 of Thalappalam case it was mentioned that the bodies and NGOs defined in the aforementioned sub-clauses (i) and (ii) constituted separate categories of public authorities, in addition to the previous four identified in Section 2(h) of the Act. The Court also observed thatorganizations which are not controlled by the government but receive substantial direct or indirect funding from the government would fall within the ambit of the sub-clauses. Also, in the Thalappalam case that the right to information was a facet of freedom of speech and expression under the Constitution of India. Accordingly, in the present case including NGOs and other bodies substantially funded by the Government as “public authorities” will expand the purview of the Right to Information Act 2005, and hence expand access to information.

The Court also relied on the purposive interpretation of a statute. For purposive interpretation, the court had to place itself in the shoes of the legislature to construe a provision in a manner to ensure that the object of the Act was fulfilled. The supreme court in para 22 held, that an NGO substantially financed, directly or indirectly, by funds provided by the government would be a ‘public authority’ under the Act.

The Supreme Court next considered the words “substantially financed.” It observed that “substantial” means a large portion, but not necessarily a major portion or more than 50 percent. It further observed that no hard and fast rule may be laid down in this regard and would depend on the facts of each case. The Supreme Court also observed that if a body cannot carry on its activities without getting finance from the Government, it then would be an important consideration for determining if the body is being substantially financed. In the present case, it is known that 44% of expenditure was given by government to one of the college and in other colleges 95% of the salary was paid by state government. Hence, it was held that these Colleges/School are substantially financed and are a public authority within the meaning of Section 2(h) of the Act.

The Supreme court while dealing with this case found that the High Court did not take into consideration the issue of substantial financing completely. Accordingly, these appeals were remitted to the High Court to determine if the institutions are substantially financed or not and dismissed the petition of the appellant. 

Conclusion  According to me, this was a landmark judgement which ensured legal certainty and held that NGOs ‘substantially financed’ comes under RTI act. Because of this misappropriation of government funds given to NGOs can be stopped and it will help in creating more transparency as this gives access of account statement to public.

^[1] (1995) Supp 2 SCC 348.

^[2] 2013 (16) SCC 82.