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DR.

RAM MANOHAR LOHIYA


NATIONAL LAW UNIVERSITY
LUCKNOW

Final draft

Civil society and public grievances

Private authority under Right to information

SUBMITTED TO: SUBMITTED BY:

Dr.Ankita yadav JITESH SHARMA

PROF LAW-DR.RMLNLU Semester-8th

Enroll no. (150101060)

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

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 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. 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”1, 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. 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.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

1
Article 19 of the Universal Declaration of Human Rights (United Nations, 1948)
authority, such information can be accessible or available to disclosure after issuing a
notice to the private body.2

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,3 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),4 “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)5 “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;

2
Adv. K.P. Pradeep, THE RIGHT TO INFORMATION – NEW LAW AND CHALLENGES
3
Application No: CIC/WB/A/2006/00011 (Right to Information Act – Section 19). 2006
4
Right to Information Act, 2005
5
id
Also Section 8 (j)6 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) of the Act.
 Private Entities are covered under Section 2 (f) of the Act.
 With reference to Section 8 (j) 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 M.M. Ansari7Information Commissioner at the
Central Information Commission (CIC), told a national daily that as long as these
companies reported to a regulator or a government department, they were within the
purview of the law.

The commission 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; for banks through the Reserve Bank of India;
and on brokerages and foreign investors active in stock markets from the Securities and
Exchange Board of India.

“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 . 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 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.

6
id
7
Information Commissioner in the year 2007
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.

Private Sector Companies with minor Government stake under


RTI: High Court8

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.

M.P. Varghese Vs. Mahatma Gandhi University 9, the Hon’ble Kerala High Court
while elaborating the meaning of public authority in the RTI Act 2005 states that those
organisations which are receiving the financial aid from the State are under the ambit of
the public authority. The word State is defined under Article 12 of the Constitution in
relation to the enforcement of fundamental rights through courts, whereas the RTI Act is
intended at achieving the object of providing aneffective framework for effectuating the
right to information recognised under Article 19 of Constitution of India.

Mr. Mukesh Mahto v. Bharat Coking Coal Ltd 10

The Central Information Commission (CIC) observed that the respondent cannot take the
defense by saying that the information sought relates to third party information or that the
information is with the outsourcing company and therefore cannot be provided by the
PIO. The Commission further held that as per section 2(f) of the RTI Act, information
relating to any private body which can be accessed by a public authority under any other
law for the time being in force constitutes ‘information’. The Commission closed the case

8
http://rtiact.hpage.co.in/private-orgs_38455804.html
9
AIR 2007 Ker 230
10
CIC/SS/A/2012/000332
noting that the information, initially denied by the PIO, has been obtained from the
private body and subsequently provided to the appellant. Comments The definition of
‘information’ which can be sought under the RTI Act includes records which can be
accessed by a public authority under any law in force.’ Hence, even the information
which may not be held by a public authority can be sought under the RTI Act. With an
increase in the outsourcing activities of the government, RTI application seeking
information regarding them are likely to be filed.

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.
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). 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. 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.
Bibliography

 Adv. K.P. Pradeep, THE RIGHT TO INFORMATION – NEW LAW AND


CHALLENGES
 (http://rti.kerala.gov.in/articles/art001eng.pdf)
 http://rtiact.hpage.co.in/private-orgs_38455804.html
 http://www.rtifoundationofindia.com/can-information-private-body-accessible-
public-aut-1818
 https://www.livelaw.in/if-law-provides-public-authority-under-obligation-to-get-
info-from-pvt-body-and-share-with-rti-applicant-delhi-hc-read-judgment/