2019 (9) TMI 1351 - SC - Indian Laws

NGOs substantially funded by government are 'public authorities' under RTI Act; SC emphasizes transparency and accountability

D.A.V. College Trust and Management Society and Ors. Versus Director of Public Instructions and Ors.

The Supreme Court held that NGOs substantially financed by the government are considered 'public authorities' under Section 2(h) of the Right to ... Interpretation of Statute - Right to Information Act - Whether non-governmental organisations substantially financed by the appropriate government fall within the ambit of 'public authority' Under Section 2(h) of the Right to Information Act, 2005? HELD THAT:- It is a well settled statutory Rule of interpretation that when in the definition Clause a meaning is given to certain words then that meaning alone will have to be given to those words. However, when the definition Clause contains the words 'means and includes' then both these words must be given the emphasis required and one word cannot override the other. NGO is not defined under the Act or any other statute as far as we are concerned. In fact, the term NGO appears to have been used for the first time describing an international body which is legally constituted but non-governmental in nature. It is created by natural or legal entities with no participation or representation by the Government. Even NGOs which are funded totally or partially by the Governments essentially maintain the NGO status by excluding Government representations in all their organisations. In some jurisprudence, they are also referred to as civil society organisations - A society which may not be owned or controlled by the Government, may be an NGO but if it is substantially financed directly or indirectly by the government it would fall within the ambit of Sub-clause (ii). While interpreting the provisions of the Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act. This Act was enacted with the purpose of bringing transparency in public dealings and probity in public life. If NGOs or other bodies get substantial finance from the Government, there is no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not. These bodies are NGOs, the issue whether these are substantially financed or not needs to be decided by the High Court. The High Court shall give both the parties opportunity to file documents - Appeal disposed off. Issues Involved:1. Whether non-governmental organizations (NGOs) substantially financed by the appropriate government fall within the ambit of 'public authority' under Section 2(h) of the Right to Information Act, 2005.Detailed Analysis:Issue 1: Definition of 'Public Authority' under Section 2(h) of the RTI Act:The core issue revolves around whether NGOs substantially financed by the government qualify as 'public authorities' under Section 2(h) of the Right to Information Act, 2005. The Act aims to ensure transparency and accountability by mandating public authorities to provide information to citizens. Section 2(h) defines 'public authority' as any authority or body established or constituted by the Constitution, by any law made by Parliament, by any law made by State Legislature, or by notification issued by the appropriate Government, and includes any body owned, controlled, or substantially financed, directly or indirectly, by funds provided by the appropriate Government, including NGOs.Issue 2: Interpretation of 'means' and 'includes':The judgment discusses the interpretation of the terms 'means' and 'includes' within the context of Section 2(h). It is emphasized that 'means' indicates an exhaustive definition, while 'includes' suggests an extension of the definition. The court clarifies that Section 2(h) uses both terms, implying that the categories mentioned are exhaustive but also expanded to include bodies owned, controlled, or substantially financed by the government, and NGOs substantially financed by the government.Issue 3: Applicability to NGOs:The appellants argued that NGOs should not be covered under the Act unless specifically notified. However, the court rejected this argument, stating that the inclusive clause in Section 2(h) clearly intends to cover NGOs substantially financed by the government, irrespective of whether they are notified or not. The court emphasized that the inclusive clause expands the definition beyond the four categories mentioned in the first part of Section 2(h).Issue 4: Substantial Financing:The court examined what constitutes 'substantial financing'. It clarified that 'substantial' does not necessarily mean a majority or more than 50% but signifies a considerable or essential portion of funding. The court provided examples, such as land given at a heavy discount, which could also be considered substantial financing. The determination of whether an NGO is substantially financed is a question of fact to be decided based on the specifics of each case.Issue 5: Case-Specific Analysis:The court analyzed specific cases to determine if the institutions in question were substantially financed by the government. For instance, in Civil Appeal No. 9828 of 2013, the court found that D.A.V. College Trust and Management Society, along with its colleges and schools, received substantial funding from the government, amounting to almost half of their expenditure and more than 95% of the expenditure for teaching and other staff. Therefore, these institutions were deemed public authorities under the Act.For other cases, the court noted that the aspect of substantial financing had not been fully considered by the High Court. These cases were remitted to the High Court for a detailed examination of whether the institutions were substantially financed, in light of the law laid down by the Supreme Court.Conclusion:The Supreme Court concluded that NGOs substantially financed by the government are public authorities under Section 2(h) of the Right to Information Act, 2005. The court emphasized the importance of transparency and accountability, stating that citizens have the right to know how their money is being used by NGOs or other bodies receiving substantial government funding. The judgment provides a detailed interpretation of 'substantial financing' and clarifies the inclusive nature of the definition of 'public authority' under the Act.