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NGOs substantially funded by government are subject to RTI Act, rules Supreme Court

Murali Krishnan

Non-governmental organisations (NGOs) substantially funded by the government are subject to Right to Information Act, 2005 (RTI Act), the Supreme Court has ruled.

The judgment was delivered by a Bench of Justices Deepak Gupta and Aniruddha Bose which held that NGOs substantially financed by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the RTI Act.

The appellants before the Court were colleges or associations running the colleges/ schools. Their claim was that NGOs are not covered by the RTI Act. According to the appellants, the objective of the Act was to cover only Government and its instrumentalities which are accountable to the Government.

It was urged that the words ‘public authority’ in RTI Act mean any authority or body or institution of self­government and such body or institution must be constituted under the Constitution, or by any law of Parliament, or the State Legislature or by a notification issued by the appropriate Government.

It was submitted that unless a specific notification is issued, in terms of clause (d), no body or institution outside the ambit of clauses (a) to (c) of Section 2(h) can be deemed to be public authority.

The Court proceeded to analyse the scope of Section 2(h) which defines the term “public authority”. It noted that the second part of the definition is an inclusive clause which indicates the intention of the Legislature to cover bodies other than those mentioned in clauses (a) to (d) of Section 2(h).

The bodies and NGOs mentioned in sub­-clauses (i) and (ii) in the second part of the definition are in addition to the four categories mentioned in clauses (a) to (d), the Court held. Clauses (a) to (d) cover only those bodies etc., which have been established or constituted in the four manners prescribed.

By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in sub­-clause (i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government.  These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be a public authority.

As far as sub-­clause (ii) is concerned it deals with NGOs substantially financed by the appropriate Government. It does not mean such an NGO have to be owned or controlled by the government, only the financing aspect is relevant.

Thus, the Court held that Section 2(h) deals with six different categories and the two additional categories are mentioned in sub-clauses (i) and (ii). Any other interpretation would make clauses (i) and (ii) totally redundant because then an NGO could never be covered.

By specifically bringing NGOs it is obvious that the intention of the Parliament was to include these two categories mentioned in sub-clauses (i) and (ii) in addition to the four categories mentioned in clauses (a) to (d).

Therefore, the Court held that it has no hesitation in holding that an NGO substantially financed, directly or indirectly, by funds provided by the appropriate government would be a public authority amenable to the provisions of the RTI Act.

[Read Judgment]

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