NGOs Fall Under The Purview Of Public Authority

Kandeep Shravan | SASTRA Deemed to be University | 6th July 2020

D.A.V. College Trust and Management Society Vs. Director of Public Instructions

Facts:

The Appellant runs multiple colleges and schools in the name of DAV College Trust and Management Society. The appellants have moved before the Supreme Court claiming that colleges/educational institutions as Non-Governmental Organisations cannot be included as a ‘public authority’ which has been defined under Right to Information Act, 2005. The appellant stated that the primary objective of the RTI Act was to cover only the Government and its instrumentalities making them accountable to the Government. Section 2(h) of the RTI Act establishes the constitution of a public authority. There are four types of public authorities as follows- (a) under the Constitution, (b) by an Act of Parliament, (c) by any law made by State Legislature, or (d) by notification issued or order made by the appropriate Government. It was stated by the appellants that the term “public authority’ is not applicable in the present case since they do not fall under the above categories. The arguments of the appellants were that as per provisions of the act only self-governing bodies or institutions are considered as public authorities.

Issues:

• Whether Non-governmental organizations which receive substantial financial aid from the government come under the purview of “public authorities” as defined in the RTI Act, 2005?

Appellant’s Argument:

It was urged by the appellant as per the opening provisions, only authorities or institutions concerned with self-governance can be called as public authorities. Hence, the appellant stated that the act was applicable to government and its instrumentalities which are directly or indirectly funded by the government and is not applicable to NGOs such as schools and other educational institutions. Further it was contended by the appellant that any organization or institution which did not fall under the ambit of the categories as mentioned in 2(h) of the RTI act, were to be brought under the purview of “public authority”, an official notification with the status as outlined in category (d) is mandatory.

Judgment:

The Supreme Court held that NGOs such as colleges and other educational institutions which are substantially financed by the appropriate government come under the purview of ‘public authority’ under section 2(h) of the RTI Act. The court specifically emphasised and relied on ‘purposive interpretation’ of the provisions. By ‘substantial’, the court meant large portions which can be both, direct and indirect, especially portions which are of major quantity or exceeding 50 percent. It was observed by the Supreme Court that whether to decide a body can carry its activities without government funding, it would be significant to consider the determination of substantially financed bodies. It was observed that with regard to the first appellant, about 44 percent of the expenditures were from the grants received. Salaries of the teaching and non-teaching staff which amounted to almost 95 percent was funded by the State Government for the colleges. As teaching constitutes an essential part of the colleges not including infrastructure such as auditorium, canteens, etc, these are considered to be substantial payments according to the supreme court. Hence, it was held by the Supreme Court that colleges and institutions which are substantially financed are considered to be a public authority under 2(h) of the RTI Act.

The Petition filed by the first appellant was dismissed by the Court. The Argument regarding the notification requirement was rejected. It was observed by the Court that “the notification contemplated in clause (d) is a notification relating to the establishment or constitution of the body and has nothing to do with the Act.”