illustration: Binay Sinha
Trusts, societies and non-government organisations, both private and public, which enjoy “substantial government financing”, would now be treated as “public authorities” under the Right to Information Act. Public authorities are likely to include bodies that run hospitals and education institutions on land given or subsidised by the government. Legal experts and RTI activists say the decision is likely to bring them under public scrutiny through the Act.
The apex court order came last week in the DAV College Trust and Management Society vs Director of Public Instructions case.
“This judgment will have a far-reaching impact. It will bring in a lot of institutions, including which are running hospitals and educational institutions, within the ambit of ‘public authority’ and hence, they are amenable to the RTI Act,” says Abhilash Pillai, partner in law firm Cyril Amarchand Mangaldas.
According to Atul Pandey, partner at Khaitan & Co, this judgment marks a paradigm shift for all charitable trusts, societies and NGOs, which receive substantial government financing. “They are now open to the disclosure of all vital information, ranging from their organisational structure to decisions to functioning, to any citizen who applies for such information under the RTI Act,” he says.
Anjali Bhardwaj, an RTI activist, points out that the definition of 'public authority' under Section 2(h) of the RTI Act
included in its ambit all NGOs which were substantially financed by the government. “However, private institutions and bodies have consistently resisted being covered as public authorities under the law, with many arguing that the law applied only to government bodies. This judgment states unequivocally that all non-government bodies that are substantially financed by the government are covered under the law,” she says.
A key positive from the order, say RTI activists, is that it clarifies that “substantial funding” does not necessarily mean majority funding. Education institutes and hospitals run by trusts using government-subsidised land will be covered since the land given to them by the government is indirect substantial financing, says Bhardwaj. The judgment says: “…if a land in a city is given free of cost or on heavy discount to hospitals, educational institutions or such other body, this in itself could also be substantial financing”.
However, the catch, point out RTI activists, is that the judgment does not give any exact definition for arriving at “substantial government financing”.
Lawyers say the complex problem is that wherever a query will be initiated under the RTI Act, the NGO or the trust concerned may say it is not covered under the Act. “So in the absence of black and white parameters, each case may become disputable,” says Rajesh Gupta, managing partner, SNG & Partners.
Pillai agrees that any attempt to withhold information by these trusts and NGOs could trigger a long-drawn dispute before the information commissioners.
Shailesh Gandhi, former chief information commissioner, points out that defining what constitutes “substantial funding” has always been a major point of dispute. “Unfortunately, the SC has not given clarity on this,” says Gandhi. He says it would have been useful if the Supreme Court had made it easier to decide what constitutes “substantial financing”. “Without legal certainty, how can citizens and official follow laws?” he asks.
Experts say trusts and NGOs that now come under the ambit of the RTI Act
will be required to appoint information officers.
Bhardwaj, however, insists that the judgment is significant as it progressively interprets the law and expands its ambit to private bodies in line with the spirit of the law. “It is important that the RTI Act
applies to private organisations, which through PPP and other agreements, get public funds. In a democracy, people have the right to know how their money is being spent,” she adds.