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Introduction

“A right-based enactment is akin to a welfare measure. [It] should receive a liberal


interpretation”.[i]

The Right to Information Act, 2005 (hereinafter RTI Act) was enacted by the parliament of India
“to provide for setting out a practical regime of right to information for citizens” and replace the
erstwhile Freedom of Information Act, 2002.[ii] Under this Act, information can be sought by
any citizen from a “public authority”, who is required to dispense it expeditiously within thirty
days. The Act also requires every public authority to computerize their records for wide
dissemination. Previously, information disclosure in India was restricted by the Official Secrets
Act, 1923 and various other special laws, which is relaxed by the new Right to Information Act.
This law was passed by Parliament on 15 June 2005 and came fully into force on 13 October
2005.[iii] The state-level RTI Acts were first successfully enacted by the state government of
Karnataka in 2000, Goa in 1997, Rajasthan in 2000, Tamil Nadu in 2001, Delhi in 2001,
Maharashtra in 2002, Assam in 2002, Madhya Pradesh in 2003, Jammu and Kashmir in 2004,
and Haryana in 2005.

Freedom of information, defined as the freedom to “seek, receive and impart information
and ideas through any media regardless of frontiers”[iv], has received a spectacular legislative
response in the recent years. As per the global survey, nearly 70 countries had adopted
comprehensive Freedom of Information Acts till June 2006.[v] Of these,
the Acts of 19 countries apply to information held by
government as well as private bodies, whereas the others
apply to government information only.[vi]This means that in those
countries where the private sector has been excluded from jurisdiction of the freedom of
information laws, individuals can access information from government, subject to certain
exemptions, but cannot access information from private bodies as a legal right.

In this globalization and anti-nationalization era, the involvement of the private bodies in the
public activities are vital and to impose accountability through transparency in relation to private
as well as public functionaries is inevitable. The promotion of access to Information Act,
2000 of South Africa prepared to accept a healthier experiment by including the private sector in
the regime of right to information. However as per the above mentioned act, if any information
with regard to a private body is with the public authority, such information can be accessible or
available to disclosure after issuing a notice to the private body.[vii]

Right to Information in Private Bodies

Private bodies were not included in the Act by the Indian legislators directly. In the landmark
decision of Sarbajit Roy v. Delhi Electricity Regulatory Commission,[viii] the Central
Information Commission also reaffirmed that privatized public utility companies continue to be
within the RTI Act, notwithstanding their privatization. The common misconception that has
been raised presently is that only entities and organizations which are substantially aided or
funded by the Government are covered under the RTI Act but the fact is that private entities are
covered under the RTI Act irrespective of whether they are substantially aided or funded by the
Government.

Private Entities are not covered under Sec 2(a) of the Act

As per Section 2(a),[ix] “appropriate Government” refers to a public authority which is


established, constituted, owned, controlled or substantially financed by funds provided directly
or indirectly—

(i) by the Central Government or the Union territory administration,

(ii) by the State Government,

But Private Entities are covered under section 2(f) of the Act

As per Section 2 (f)[x] “information” means any material in any form, including records,
documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data material held in any electronic form and
information relating to any private body which can be accessed by a public authority under any
other law for the time being in force;

Also Section 8 (j)[xi] is relevant here which provides that the information which cannot be
denied to the Parliament or a State Legislature shall not be denied to any person. To summarize
the argument / point of view:

 Private Entities are not covered under Section 2 (a)[xii] of the Act.
 Private Entities are covered under Section 2 (f)[xiii] of the Act.
 With reference to Section 8 (j)[xiv] of the Act, one can reasonably infer and conclude
that: Provided that the information which cannot be denied to the Public Authority with
which the Private Entity is registered shall not be denied to any person.

Hence, Private Entities are covered under the RTI Act through the Public Authority with which
they are registered. It becomes imperative to find the public authority with which the particular
private entity has registered itself. For example, Co-operative Societies register themselves
through Deputy Registrar of Co-operative Society’s and Banks through the Reserve Bank of
India[xv] M.M. Ansari[xvi], Information Commissioner at the Central Information
Commission[xvii] (CIC), told a national daily[xviii] that as long as these companies reported to a
regulator or a government department, they were within the purview of the law.

The commission[xix] said that the companies would not have to appoint information officers to
deal with right to information demands unlike the government entities. Applicants shall route
their requests through the relevant agency. Information on telecom companies such as Bharti
Airtel, the largest mobile telephony firm, could be accessed through the Telecom Regulatory
Authority of India[xx]; for banks through the Reserve Bank of India[xxi]; and on brokerages and
foreign investors active in stock markets from the Securities and Exchange Board of India[xxii].
“Applicants have every right to seek information on a private company even though it is in the
private sector, if it reports to a government body,” said Ansari[xxiii]. It was also added by him
that only applications that served public interest would be dealt with, not those that sought to
erode a company’s competitive position. For instance, any citizen can ask a Cola[xxiv] company
for details on how much water it used and where the water came from, but not the formula of its
fizzy drink. If there is any difference of opinion on what constitutes public interest and what
doesn’t, the commission will arbitrate and decide.

According to a number of authoritative sources[xxv], “the act is under-utilized when it comes to


gathering information on the private sector, but it does have a provision for seeking information
on the corporate sector”.

Private Sector & The Purview of RTI: Detailed Analysis

While Right to Information Act states that only those private organizations which have
“substantial” funding from the government come under the purview of the RTI Act, in cases
where these entities are in partnership with the government, it is possible to get necessary
information out of them. With municipal corporations, state and central governments
increasingly opting for Public Private Partnerships (PPP), transparency could take a beating, as
private organizations have been given an opportunity to duck under the Right to Information Act.
The Act says that only if private organizations are “substantially” funded then they come under
the purview of public domain. But the question about the authority which is going to take
decisions regarding “substantial funding” remains unanswered. Benefitting from this loophole,
the private bodies take cover and refuse to give information to the person or group.

A sterling case is that of the Ideal Road Builders (IRB), a private agency which collects toll fees
from most of the highways in Maharashtra, including the Pune-Mumbai Expressway. It is
impossible to procure information regarding the data of toll collection. However, in such cases,
since their partnership is with a government body, citizen can get access to such information
from the government organization. Strangely, the Maharashtra State Road Development
Corporation (MSRDC), the government body in this case which is mandated to monitor the toll
collection itself has not monitored the revenues of the IRB despite appointing an independent
engineering consultant, STUP Consultants Pvt. Ltd. However, citizens demanded this
information under RTI Act; and thereby the MSRDC was compelled to request the IRB to send
the data of toll collection, year-wise. One of the officials confessed that they had only recently
asked the IRB to supply information due to pressure of RTI queries which was previously
untouched.

Similarly, Metros that are being “forced” upon citizens in several towns and cities across the
country, without proper planning, are mostly constructed by the Delhi Metro Rail Corporation
(DMRC). Here too, the DMRC is a private body and any query under RTI is denied. In the case
of the Pune Metro, the DMRC has disastrously planned the metro and submitted a shoddy and
superficial Detailed Project Report (DPR). Despite the project report not satisfying the Pune
Municipal Corporation’s (PMC) terms of reference and it not abiding by the central government
guidelines while making the DPR, the PMC’s general body and the administration has blindly
passed the project. It now lies with the state government, which failed to allot finance for it in the
current budget. The scandal of this Rs10, 000-odd crores’ infrastructure that is going to add to
the chaos of the already congested roads in Pune and become a heavy tax burden for citizens for
many years, came to light due to the RTI invoked at the PMC. Thus, in private-public
partnerships one can get access to public documents by putting a query to the ‘public
partner’.

The key approach and philosophy of the RTI Act appears to be that since the State acts on behalf
of the citizens, wherever the State gives money, the citizen has a right to know (right to
information). In my opinion, if the money given for the running expenses is over either 20% of
the running expenses, or Rs. 1 Crore, the body should be considered as receiving ‘substantial
finance’ and is covered in the definition of a ‘public authority’.

Private Sector Companies with minor Government stake under RTI: High Court[xxvi]

The Delhi High Court said that even those companies in which government has a minority stake
can be brought under the purview of Right to Information Act and declared National Agricultural
Cooperative Federation of India Ltd (NAFED) as public authority. Interpreting the Act, Justice
S. Muralidhar said there is no need to have deep or pervasive government control over an
institution to bring it under the ambit of the transparency law.

“The absence of any adjective like deep or pervasive qualifying the word controlled in the RTI
Act means that any control over the body by the central government will suffice to make it a
public authority,” the court said adding “a controlling interest through shareholding does not
necessarily mean majority shareholding.”

Issues Involved in Extension of Right to Information Laws to the Private Sector

Balancing the right to know and commercial confidentiality is more relevant for private
sector information, as compared to the government due to
high sensitivity of information. This will require defining the
exceptions rather narrowly, which can be an uphill task.

If the information accessed from a private body reveals a wrongdoing, it indicates that
an obligation is imposed on the private body to fix the problem. For this reason, the
private sector may resist transparency beyond a certain point to preserve its repute in the market.
Extension of the right to information laws can increase the costs of collection and provision of
information. This is one important criticism leveled against this extension issue. Moreover,
mechanism will have to be evolved to ensure that the
information provided is free from “spin”, and is presented in
a way that the public is able to comprehend it.

Conclusion

The author would like to conclude this essay by suggesting some recommendations in favor of
implementing or extending scope of right to information laws in private sector. The competent
authorities need to make specific rules to facilitate the seeking of information from private
bodies by the people. The rules must clearly lay down the obligations of the concerned public
authorities and private bodies, and specify the procedures that need to be followed to process
applications demanding information from private bodies under section 2(f)[xxvii]. Appropriate
governments should periodically inform the private sector about their obligations under section
2(f) of the RTI Act, as most of them are unaware that they are covered by the act. The
appropriate governments should also bring out a guide indicating the type of information that can
be accessed from different private bodies under various provisions of law. This would greatly
help the public in using the RTI Act to access information from the private sector, thereby
significantly increasing their accountability.

With expansion in public sector, it is undertaking many public functions that were
conventionally performed by the government. This change has occurred due to rapid
privatization, de-regulation, and economic globalization.[xxviii] As a result,
a substantial amount of information about public
functions, which was previously in the possession of
governments, now belongs to the private sector. Information related to private banks,
telecommunication companies, hospitals, and universities can be considered as an example.
Thus, exclusion of the private sector from the right
to information laws effectively means that individuals can no longer access information
from these important sources. Public demand for extending right
to information law to private sector is increasing because this expansion of private sector
has put much information outside the scope of the law introduced in 2005. Therefore, a need is
being felt to bring in more private organizations under the purview of the right to
information law, particularly those involved in building and maintaining hospitals, schools,
leisure and sports trusts. Extension of right to information laws to the private sector is necessary
to supplement the disclosure regimes for improving their effectiveness.

CASE LAWS:

1. Central Information Commissioner, Prof. M Sridhar Acharyulu, in the case of Subhash


Chandra Agrawal v. PIO, Department of Sports (2017 CIC) , declared the BCCI to be a
public authority and directed the Board to disclose information sought by the RTI applicant.
2. UPSC v. Angesh Kumar (2018 SC)- If a case is made out where the court finds that public
interest requires furnishing of information, the court is certainly entitled to so require in a
given fact situation. If rules or practice so require, certainly such rule or practice can be
enforced, said the Bench. The Supreme Court, in UPSC v Angesh Kumar, while setting aside
a high court judgment has observed that information sought with regard to details of marks in
Civil Services Exam cannot be directed to be furnished mechanically. Some candidates, who
were unsuccessful in the Civil Services (Prelims) Examination, had approached the high
court seeking a direction to the Union Public Service Commission (UPSC) to disclose the
details of marks (raw and scaled) awarded to them in the Civil Services (Prelims)
Examination 2010. They had sought information in the form of cut-off marks for every
subject, scaling methodology, model answers and complete result of all candidates were also
sought. The high court had allowed their plea directing the commission to provide the
information within 15 days. The commission approached the apex court assailing this order.
The commission contended before the apex court that where information is likely to conflict
with other public interest, including efficient operation of the government, optimum use of
fiscal resources and preservation of confidentiality of some sensitive information, exclusion
of right or information can be applied in a given fact situation. It also submitted that the
exclusion by sections 8, 9 and 11 of the RTI Act is not exhaustive and parameters under third
recital of the preamble of the Act can also be taken into account.
3. Union of India v. CIC (2017 CIC)- The court set aside the directions issued by the CIC to
the Central and state governments to provide the necessary support to each minister,
including designating some officers or appointing the said officers as Public Information
Officers and first appellate authorities, besides giving an official website to the ministers for
suo moto disclosure of information with periodical updating as prescribed under Section 4 of
the RTI Act. Besides this, the CIC recommendation that the oath of secrecy taken by the
ministers be replaced with the oath of transparency also stands overturned with the high court
holding them to be “totally out of scope of the CIC”. Besides this, the CIC recommendation
that the oath of secrecy taken by the ministers be replaced with the oath of transparency also
stands overturned with the high court holding them to be “totally out of scope of the CIC”.
4. DK Bose v. PIO, Delhi Soccer Association (2017 CIC)- The CIC was hearing an Appeal
filed by Mr. D.K. Bose, who had sought information of the status of various complaints
received by DSA office bearers. He had further sought details of the members of the sexual
harassment committee formed by the DSA as well as the minutes of meetings of such
committee. The information was sought in view of the fact that sexual harassment allegations
had been filed against DSA’s Vice-President. During the hearing, the CIC noted that the
DSA is the only State level sports body for football in Delhi and concluded, “It is thus an
intrinsic part of the public authority with all the powers, finances and support from the
federation to conduct, promote and select teams in the Football sport. With regard to the
allegations, Prof. Sridhar opined, “The DSA will decide the future of youth in football. It has
to encourage the sports persons in fair manner based on merit and no other consideration.
The DSA cannot escape the responsibility of creating and maintaining conducive atmosphere
for all sporting youth, especially football playing girls, for growth and encouragement. The
frequent complaints by the girls/women sportspersons including sexual harassment against an
important executive like Vice President reflect unhealthy atmosphere that is prevalent in
DSA, for which it has to responsibly account for.“ In the light of such findings, the
Commission directed the DSA to appoint a Public Information Officer (PIO) within 30 days
and update their website, specifying the information about its constitution and members.
5. R.K Jain v. Indian Bank Association (2017 CIC)
6. Ms. Ita Bose v. Indina Bank Association (2017 CIC)- Indian Bank Association is subject
to RTI. “We also note that IBA performs various activities, which are entrusted to them by
the Government or the Reserve Bank of India. The functions performed by the IBA are
mentioned in para 5 above in the submissions of the IBA, which are the important public
functions. In our view, the IBA works as an instrumentality of the State.” However, she did
not subscribe to the view that IBA is directly or indirectly financed by the Government. She
also expressed her disagreement with the order of issuing a show cause notice to the PIO,
observing that the status of the IBA as a public authority is being decided only now. Taking
into account that the IBA performs functions as State agency and its majority control vests in
Government of India appointed Managing Directors of Public Sector Banks, the IBA
qualifies to be a public authority under the RTI Act, 2005. The Commission, therefore,
directs the IBA to designate an official of the IBA as the CPIO at the earliest as per
provisions of Section 5 of the RTI Act, 2005 and also to comply with Section 4 of the RTI
Act, 2005 within four weeks of the receipt of the order of the Commission.
7. Shri YN Prasad v. PIO (2017 CIC)- On appeal before the Central Information
Commission, Information Commissioner Yashovardhan Azad directed the PIO to offer
inspection of the judicial file to the appellant on a mutual convenient day and time. The court
also observed that the applicant shall be entitled to avail copies from the record upon
payment of usual charges.
8. Aabid Hussain v. PIO , Alhmad Evening Court (2017 CIC)- 2-yr Wait For RTI Info Akin
To Harassment, CIC Awards Rs 5K Compensation To RTI Applicant. Aabid Hussain has
been awarded a compensation of Rs 5,000 to be paid by Cantonment Board, Jabalpur, which
kept him waiting for two years when he sought copies of some General Land Record survey.
9. Ajit Kumar Singh v. PIO, NCPCR (2017 CIC) - Central Information Commissioner M
Sridhar Acharyulu lambasted the child rights body, while asking its Chief Public Information
Officer (CPIIO) and the two deemed PIOs to show cause why maximum penalty should not
be imposed on them for “illegal obstruction of information”. He also directed the NCPCR to
provide information regarding cases pending for over two years pertaining to Bihar circle and
details of disposal of cases where accused were found guilty, after removing names and
personal details of children within 15 days. This denial of information is contrast to what the
NCPCR advocates for, as is evident on its website — “larger societal concern for children
and their well-being”. In the instant case, Ajit Kumar Singh had moved an RTI application
seeking information about the number of complaints received by the NCPCR, copy of
inquiry proceedings in such complaints, date-wise decisions of cases where the accused
persons were found guilty and what reliefs were granted. Section 8 (1) (j) of the RTI Act
exempts such information from disclosure which is personal in nature and has no relationship
with any public activity or interest and which would cause unwarranted invasion of privacy
of any individual. Miffed, the CIC observed, “It is absolutely not convincing that the
National Commission for Protection of Child Rights is refusing information about action
taken on complaints pending since years before it. The NCPCR uses a privacy exception to
refuse entire information en bloc.” “No effort is done to provide information which could
have been disclosed on their own under Section 4(1)(b). Except the name of the child,
nothing could be denied. The NCPCR has hired services of a consultant and adviser, who
instead of guiding the CPIO properly to disclose the information, misguided him to deny the
entire information. These two experienced seniors did not even provide reasons to justify the
denial. They failed to perform their duty to separate information that could be given from that
cannot be given and provide, as prescribed under Section 10(1) of RTI Act,” the CIC said.
“They do not know that Section 10 provide for severability. When the appellant was not
seeking names and personal information and wanted information about the number of cases
left out without any action, or action taken and pending before the Commission for years, the
public authority cannot invoke Section 8(1)(j) at all,” Prof Acharyulu said.

10. Mahavir Chopda v. PIO, NMIMS University (2008 CIC)- Deemed Universities are
under the purview of RTI. Mumbai resident Mahavir Chopda, on 25 February 2008, sought
information from NMIMS University regarding cancellation of registrations by students
during 2005 to 2008 and refund by the university. His queries were...
For each of the academic years 2005-06, 2006-07 and 2007-08, please furnish the following
information precisely and concisely:-
(1) In how many instances did students cancel admission after paying fees for admission
to your FT-MBA Course?
(2) What amount of fees was retained by NMIMS (i.e. collected by NOT refunded to
students) due to the above cancellations?
(3) Among the above students, how many students cancelled admission before
commencement of the course? How much fees was retained by NMIMS due to these
cancellations in particular?
(4) What was the last date when a student was admitted to your FT-MBA Course?
While the public information officer (PIO) refused to give information, the First Appellate
Authority (FAA) did not reply. Due to this, Mr Chopda then approached the Commission.

During the first hearing on 5 January 2009, one Shekhar Gupta filed a Vakalatnama on behalf of
NMIMS University. He sought adjournment saying that he know nothing about what he is
supposed to represent. Mr Gandhi, noted, “...The Commission is not amused at this move to
delay the process but is making an exception and listing it on 14th January”.
During the hearing, Mr Gupta, representing NMIMS University, gave a written submission to
argue that the institution is not a public authority. The Commission asked him whether the
university is substantially financed by the government, whether it has received land at
concessional rates or any other subsidies and if donations received by the university are exempt
from payment of Income Tax. The CIC asked the university to file an affidavit before 7 February
2009.

An affidavit was filed by Madhav N Welling, pro-vice chancellor of NMIMS University, dated 3
February 2009 stating that the deemed university has not obtained any land at concessional rates
nor are the donations received exempt from payment of Income tax.

On 24 February 2009, the Commission wrote a letter to NMIMS University stating it wishes to
draw attention to following points:-

“Section 2(h) of the RTI Act defines public Authority in the following words:
‘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 ad includes any-
………………by the appropriate Government.”

Therefore, any authority or body established or constituted by notification issued by the


appropriate government is a “public authority” under the RTI Act.

Section 3 of the University Grants Commission Act, 1956, provides for the constitution of
Deemed Universities. Section 3 reads as follows:-
“The Central Government may, on the advice of the Commission, declare by notification in the
Official Gazette, that any institution for higher education, other than a University, shall be
deemed to be a university for the purpose of this Act, and on such a declaration being made, all
the provisions of this Act shall apply to such institution as if it were a university within the
meaning of clause (f) of Section 2.”

It appears from Section 3 that deemed universities are declared to be so by notification in the
official Gazette by the Central Government. Of this is the case, then a deemed university may
come within the definition of “Public Authority”.

During the hearing on 27 March 2009, Mr Gupta, appearing on behalf of NMIMS University
agreed that the university was conferred the status of deemed university by a notification issued
by the Central Government. He also raised two points quoting an order of Rajasthan Information
Commission in appeal no 159/08 of 16 April 2008 and also a stay order issued by the Delhi High
Court on 14 November 2008 in WP (C) No. 8035/2008. The Commission then reserved its order
to consider points raised by the University.

The Commission on 31 March 2009 considered the stay order mentioned by NMIMS University.
It said the facts of this case are different that the one mentioned in the high court stay order. The
Rajasthan Information Commission in a particular case stated that “The Jain Vishwa Bharti is not
an authority or body or institution of self government established and constituted (a) by or under
the constitution. Jain Vishwa Bharti, on the other hand, is a society registered under Societies
Registration Act and notified as a deemed university under Section 3 of University of University
Grants Commission (UGC) Act, 1956.”

Section 2 (d) states “Public Authority means any authority or body or institution of self
government established or constituted:
…………..
d) by notification issued or order made by the appropriate government,”

According to Section 3 of the UGC Act, 1956...

“Application of Act to institutions for higher studies other than Universities. The Central
Government may, on the advice of the Commission, declare, by notification in the Official
Gazette, that any institution for higher education, other than a university, shall be deemed to be
a university for the purposes of this Act, and on such a declaration being made, all the
provisions of this Act shall apply to such institution as if it were a University within the meaning
of clause (f) of section 2.”

and Section 2 clause (f) states...


“’University’ means a University established or incorporated by or under a Central Act, a
Provincial Act or a State Act, and includes any such institution as may, in consultation with the
university concerned, be recognized by the Commission in accordance with the regulations made
in this behalf under this Act.”
The Commission said, NMIMS clearly meets the criterion of Section 2(d) of the Act, since it got
its status as a “deemed university” by virtue of a notification by the Central Government and
must furnish information as mandated by the RTI Act.

Allowing the appeal of Mr Chopda, the Commission asked Mr Welling, the pro-vice chancellor
of NMIMS University to provide the information free of cost before 20 April 2009 and also send
a copy of the information to the Commission.