Supreme Court stays Kerala High Court verdict which held RTI Act applies to Cochin International Airport

The Supreme Court on Monday stayed a judgment of the Kerala High Court which had held that Cochin International Airport Limited (CIAL) is a ‘public authority’ under the Right to Information Act, 2005 (RTI Act) and that it is, therefore, obliged to disclose information to parties who approach it with RTI applications.

The Bench of Justices Vikram Nath and Sandeep Mehta passed the stay order on an appeal filed by CIAL against the High Court verdict.

This was after CIAL's counsel submitted that the airport is a company and incorporated under the Companies Act and not a creation of the parliament and is not funded by the government.

"The question is whether Cochin International Airport is 'public authority' under RTI, Act. The High Court judgement is untenable. The petitioner is company under Companies Act and hasn't been created by an Act of Parliament like LIC etc. I am not funded by government," the counsel submitted.

"Leave granted. In meantime the effect and operation of the impugned order shall remain stayed," the top court said in order.

A Division Bench of Justices SA Dharmadhikari and Syam Kumar VM of the High Court on August 5 upheld earlier rulings by a single-judge of the Court as well as the State Information Commission (SIC) holding CIAL to be a 'public authority'.

"It is held that CIAL is a 'public authority' under Sec. 2(h)(d)(i) of the RTI Act. The view taken by SIC in the impugned order dated 20.06.2019 is affirmed, holding that CIAL is bound to divulge necessary information and meet the statutory obligations placed upon its shoulders vide the various provisions of the RTI Act, including the appointment of PIO and divulging of necessary information in the said regard," the High Court's judgment said.

It also directed CIAL to take all necessary steps to become completely compliant with the RTI Act and file a compliance report before the Court.

The High Court also noted that the appeals before it were filed by the Managing Director of CIAL without the approval of the CIAL Board of Directors. Even the Chief Minister, who is the Chairman, was not consulted before filing the plea.

Deprecating the move, the High Court directed the Chief Secretary to the government of Kerala, who is also a member of the Board, to take action against the Managing Director.

To curb such actions in the future, the Court deemed it fit to impose costs of ₹1 lakh on CIAL, to be deposited with the Kerala High Court Advocates' Association.

In its plea before the High Court, CIAL had primarily contended that it was not ‘owned’, ‘controlled’, or ‘substantially financed’ by an agency of the government to be considered a public authority under Section 2(h)(d)(i) of the RTI Act.

CIAL argued that it is not a body established through a Government Order (GO) but was incorporated under the erstwhile Companies Act, and as such, cannot be presumed to be a 'public authority' under the RTI Act.

The High Court rejected this contention, noting that CIAL was preceded by the Kochi International Airport Society (KIAS), which came into existence by virtue of a GO. Since CIAL had effectively borrowed all the assets, land base, capital, and other funds, the Court concluded that CIAL too came into existence by virtue of the same GO.

The Court also observed that the 'ownership' contemplated under Section 2(h)(d) need not be complete or absolute ownership, it can be partial ownership as well. In this case, the presence of government functionaries in the Board of Directors of CIAL gave it the character of a government body.

The Court added that the presence of the Chief Minister and cabinet ministers in the Board practically ensured that the other directors yield to their views.

Considering the amount of financial aid received by CIAL even before its incorporation, the Court held that KIAS, and later CIAL, had been ‘substantially financed’ by the State and Central governments and their instrumentalities.

"Therefore, all the limbs of being a ‘public authority’ are duly satisfied and we must hold that CIAL is a ‘public authority’ amenable to disseminate information under the provisions and rigours of RTI Act," the High Court concluded.

This led to the appeal before the Supreme Court.

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