Substantial ambiguity

The Supreme Court’s judgment last week bringing non-governmental organisations (NGOs) “substantially funded” by the government under the Right to Information Act raises several critical questions. The two-judge Bench of Justice Deepak Gupta and Justice Aniruddha Bose based their judgement in the case D A V College Trust and Management Society vs Director of Public Instructions on an interpretation of “inclusive” sub-clauses defining the categories of eligible institutions under the Act. In addition to four categories, one clause stated that the Act would be applicable to bodies that were owned, controlled, or substantially financed by the appropriate government, and not necessarily formed under the Constitution, an Act of Parliament or a state legislature, or by a notification. This definition, the judges concluded, brought NGOs funded, directly or indirectly, by the appropriate government squarely within the ambit of the Act. Potentially, thousands of private trusts and institutions that work with government funding to varying degrees could now be open to public scrutiny.

In terms of the broad purpose of the RTI Act, the judgment appears unexceptionable. If public money is being expended on a private initiative, the taxpayer has the right to know how it is being spent. This is relevant in the case of hospitals and educational institutions for which governments extend land grants and related subsidies. Most of this aid typically comes with conditions attached, such as reserving a certain percentage of beds/seats for the poor. There has long been a suspicion that the mushrooming “five-star” hospitals and educational facilities in 21st century India, built on government land and tax breaks, observe these conditions more in the breach. The Supreme Court’s latest judgment would bring them under public scrutiny. 

The attractions of such transparency must be weighed against the ambiguity on the key definition of “substantially funded”. In 2015, the Central Information Commission had defined substantial funding thus: If a body receives Rs 5 lakh from the government and if this amounts to 10 per cent of the annual income of the NGO concerned. Though this ruling has the virtue of specificity, it appears to set the threshold rather low. The Supreme Court in its September 17 ruling stated the term “substantial” meant “a large portion”. It added that “[i]t does not necessarily have to mean a major portion or more than 50 per cent. No hard and fast rule can be laid down in this regard”. The issue had to be determined on “the facts of each case”. The judgment has offered some guiding examples — for instance, if the grant amount is small (say, Rs 5,000) or whether the NGO concerned can function without it and so on. But this still leaves the door wide open for interpretation and adds to NGO costs in terms of lawyers’ fees. As it is, NGOs that receive government funding are required to appoint information officers to service RTI requests, which is likely to put disproportionate pressure on smaller NGOs rather than the bigger, well-funded ones. The government would do well to include a specific definition of “substantial funding” in the RTI Act so that the overburdened courts are not loaded with more cases on this count.


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