Explained: Public Authority under RTI Act

Reading time: 8-10 minutes.

On March 28 2020, Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) was introduced in order to deal with the unsought for and accidental situation posed by the outbreak of COVID-19 pandemic. Prime Minister Narendra Modi is its ex-officio chairman, while Union home minister Amit Shah, Defence Minister Rajnath Singh and Finance Minister Nirmala Sitharaman are its trustees.

The Fund has reportedly received a whooping sum of Rs 6,500 crore in the first week of its introduction to the people. The total donation received Rs 10,000 crore since its inception. On April 1, an RTI filed was filed seeking details of the fund, and to its reply, the PMO stated that the Fund is not a public authority under the ambit of Section 2 (h) of the Right to Information Act, 2005, and therefore it is not bound to divulge the information sought in the application.

What is Public Authority under RTI Act?

Section 2(h) of the RTI Act, 2005 defines the term public authority. According to the Section, the term public authority includes within its ambit any authority, body or institution of self-government established or constituted by or under:

a) The constitution;

b) Any other law made by parliament;

c) Any other law made by the state legislature and

d) Notification issued or order made by the appropriate government.

The term also includes “body owned, controlled or substantially financed; non-governmental organization substantially financed directly or indirectly by funds provided by the appropriate government”.

Legal provisions involved

The rejection of the applications appears to be a deliberate attempt to mislead the applicant breaching the Right to Information (RTI) Act. It amounts to deemed refusal and real rejection without valid grounds. The PM Cares Fund was created by the Prime Minister and PMO, the name itself suggests such a point.

It appears that strategic avoidance of transparency has been made by the PMO by refusing the disclosure of ordinary documents which are not included under the exceptions mentioned under Sections 8 or 9 of the RTI Act and wrongly invoking Section 2(h) of the Act. According to Section 8, the government departments have the authority not to disclose any information. This information includes the one which:

  • Would endanger national integrity, security or economic interests;
  • Would amount to contempt of court;
  • Would hamper investigations carried on by police;
  • Would affect commercial interests;
  • Would threaten ‘fiduciary’ relationships;
  • Would harm the person physically
  • This Section also protects information pertaining to deliberations of the Council of Ministers and Secretaries while the process is underway.

Section 9 of the Act also provides the exceptional situations according to which without affecting the provisions of section 8, a Central Public Information Officer or State Public Information Officer, is not obliged to provide any information where the request for such information involves providing access which would involve an infringement of copyright subsisting in a person other than the State.

Critical analysis

The rejection and the functioning of the PMCARES fund raises several questions regarding the transparency of the fund. These questions are as follows:

  • Control of the PMO: the PM’s page states that PM is the ex-officio chairman, and he shall have the authority to nominate three trustees to the board of trustees who shall be experts in the field of research, science, health, social work, law, and public administration. The appointment of its trustees from among the party members puts the fund out to question;
  • Statutory exemptions: the PM’s page announces exemptions from any tax liability without expressly mentioning any statutory authority or provision under which such exemption is granted. The Prime Minister’s National Relief Fund (PMNRF) is already functional and a creation of similar additional fund remains unexplained.
  • Compulsory donation: the PM’s official page states that the donation is completely voluntary and there is no obligation attached to it. However, the request of the revenue department of the finance ministry to its employees to compulsorily donate a single day’s salary till March 2021 doesn’t go well with the nature of the fund.
  • The control of PMO and transparency: the questions relating to the accountability of the fund arise out of the following reasons:
  • It hold PM’s name;
  • The operation of the fund is within the PMO;
  • The concessions like tax exemptions amount to ‘substantial funding’.

Further the fact that the fund is headed by the Prime Minister comprises of three cabinet ministers and the appointment of the other three members by them makes the fund, a public authority under the RTI Act, 2005.

Since the fund is under the total control of the PMO, it becomes a public authority. If it were deemed to be a public charity trust, then it is governed by the Trusts Act which would have demanded it to be transparent. If it is considered to be a society under the Societies Registration Act, 1860, it must be transparent.

Landmark judgments

In Thalappalam Ser. Coop. Bank Ltd. v. State of Kerala, it was held that where a body is not merely regulated or supervised by the appropriate government but is rather “substantially controlled” by it. The body becomes public authority under the RTI Act, 2005.

In Prime Ministers National Relief fund v. Aseem Takyar, it was held that the satisfaction of Section 2(h)(d)(i) by the fund will bring it within the definition of “public authority” within the meaning of public authority.  

Conclusion

The primary objective of creating the und was to deal with any kind of emergency or distress situation, like posed by the COVID-19 pandemic. However, with the passage of time there has been several questions which have arose owing to the lack of transparency. These questions need to be answered as soon as possible in order to remove the ambiguity in the minds of people.

Author: Shivangi Tiwari from HNLU, Raipur.

Editor: Silky Mittal, Junior Editor, Lexlife India.

PM Cares Fund and RTI

Reading time: 8-10 minutes.

RTI or the Right to Information was introduced through the Right to Information Act, 2005 with the objective of making the government and its agencies accountable to the public by the release of certain information which may be beneficial to the citizens in order to make an analysis of the proper functioning of the state.

The battle against the pandemic of COVID-19 and similar situations which the nation might face, a financial assistance fund in the form of a public charitable trust was set up under the name of Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM-CARES). It accepted donations from the public, and to encourage a larger participation it incentivized the process by making contributions to the fund a part of Corporate Social Responsibility and also provided certain tax exemptions.

The prior existence of Prime Minister’s National Relief Fund (PMNRF) generated a question in the mind of law student about why a separate alternative fund was needed and for this he filed an RTI for the trust deed of the PM-CARES trust along with all the government orders, notification, and circulars relating to creation and operation of the trust fund. The Prime Minister’s Office replied to the RTI by stating that as the trust was not a public authority and hence not under the ambit of Section 2(h) of the RTI Act, 2005 (hereinafter ‘the Act’).

The Plea for PM-CARES under the ambit of the Act

Following the reply, a Public Interest Litigation is filed before the Delhi High Court in order to ascertain a direction to the trustees of the trust for the display of the accounts of the contributions. The petitioner asserts that if any institution or agency that is “owned”, “controlled” or “substantially financed” by the Government qualifies a public authority under the Act. The trust is contended to be both substantially controlled and financed by the government.

It is further submitted that, as the Prime Minister is the ex-officio chairman of the trust while the Defense, Finance and Home Affairs ministers are the ex-officio trustees and that they may form rules/criterions for spending of the trust funds. The feature establishes the control of the trust by the government. To support the claim regarding financing, it states that large sum of money amounting to the corpus of ₹10000 crores have been made from Public Sector Undertakings, Central Ministries and Departments. Also there have been mandatory deductions from the salaries of civil servants, members of judicial entities and armed forces personnel for the fund. Therefore, citing the judgement of the hon’ble Supreme Court in PUCL v. Union of India (2004) 2 SCC 476, it is stated that PM-CARES is a public authority.

If PM-CARES if not a public authority, the petition states, then the Right to Information originates from Article 19(1)(a) giving citizens a fundamental right of speech and expression and therefore the people have a right to know about the details of the accounts. It further stated on the same ratio that if it is not to be a public authority then whether the government can make it a mandate to contribute funds to the employees in the agencies and public servants.

It also stated that even the victims of COVID-19 have a right to know about the funds which are being collected by the government for their financial assistance as they are in the desperate need for the same and are currently not in position to enforce their fundamental rights. The objective of the trust is a public cause and the trustees are working at a pro bono capacity, therefore it shall be directed that the details of the accounts relating to the collection of funds and its expenditure shall be made public.

Provisions of the RTI Act and Analysis

The provision which was cited in the PMO response to the RTI was of ‘public authority’. It stated that the trust is not a public authority as defined under the act and hence was not liable to provide any information as requested under the act. Section 2(h) defines the term ‘public authority’ for the purpose of the legislation.

Public authority is any authority, body or institution of self-government established or constituted under –

  • by or under the Constitution
  • by any law made by the Parliament
  • by any other law made by State Legislature;
  • by notification issued or order made by the appropriate Government,

The second part of the definition is for encompassing bodies in which the government has a substantial stake either in the form of control over management or

  • body owned, controlled or substantially financed;
  • non-Government organization substantially financed,

directly or indirectly by funds provided by the appropriate government.

It is the second part of the definition that is relevant in the instant case. Whether the control and financial participation of the government in the trust could be established to bring it under the ambit of the act is to be decided by the court under the petition filed.

As there is no definition of the ‘control’ in the act, the Supreme Court while interpreting the same in Thalappalam Service Coop. Bank Ltd. v. State of Kerala held that mere ‘supervision’ or ‘regulation’  by a statute or a body would not deduce it to be a ‘public authority’ as the control of the government shall be substantial.

Conclusion

The PM-CARES fund was specifically created under the trust for financial assistance in the battle against the COVID-19 pandemic. A registered trust is a distinct legal entity having a separate legal character. As the trustees are elected representatives and have utilized their office for creating the trust and attracting donations in it, it is only viable that the accounts of the trust regarding the source of collection of donations and the subsequent expenditures which are made using such contributions are disclosed to the public in order to reinforce the principles of accountability to the public in the government and to have a transparent, bona fide operation of such trust.

Author: Ketan Swaraj Nair from UPES, Dehradun.

Editor: Silky Mittal, Junior Editor, Lexlife India.

Analaysis: RTI Amendment Bill

Reading time: 6-8 minutes.

The modern democracy is institutionalised by the system of checks and balances. The government officials violated this Right to Information Act by virtually usurping the fundamental right of “an informed citizenry.” This Amendment, struck the very foundation of the citizen-centric Right to Information Act, by disabling its neutrality making it favourable to the government.

The authorities under the RTI Act, are merely toothless tigers at the mercy of the government for tenure and salary structure. The ethos of RTI, i.e. transparency and accountability of the government is torn into pieces as the ultimate accountability is not to the people forming the democracy, but to the government running it. 

Background:

Right to Information Act was passed by Parliament on 15 June 2005 and came fully into force on 12 October 2005. This act was enacted to consolidate the fundamental right in the Indian constitution ‘freedom of speech’ which is guaranteed under Article 19.

It empowers individuals to access information that is being kept by the state. It thereby ensures transparency as the government remains accountable to individuals in the way it carries out its functions. The RTI Act has also consciously given Information Commissioners status and privileges equal to Election Commissioner to guarantee that they operate independently and autonomously. 

Importance:

The Right to Information holds that every citizen should have the right to obtain access to government records. The reasons often advanced in support of the right are; First, that the right of information adds the accountability of government and its agencies;

Second, that it empowers the citizens to contribute more efficiently to deliberate on the relevant questions of public policy and third, that right to information renders justice in administrative decision-making processes concerning individuals.

Salient features of RTI:

  1. The right to information endeavours maximum transparency in the functioning of the Government, and it provides access to pertinent information to their stakeholders so that they get extensive knowledge about government policies.
  2. The core objective of the Right to Information is to ensure that the activities of public officials are to open to the sharp eye of citizen’s scrutiny. 
  3. The applicant can solicit inspection of works, documents record certified copies of documents, etc.
  4. Information under this act includes any material in any form, including documents, records, email memos, etc.
  5. The public authorities are required to designate senior officers as Central / State Public Information Officers who would be responsible for the disposal of applications. 
  6. Period: In the ordinary course, information to an applicant is to be supplied within 30 days from the receipt of the application by the public authority. If the information sought concerns the life or liberty of a person, it should be supplied within 48 hours.
  7. Section 8 (1) of this act mentions exemptions against furnishing information and Section 8 (2) provides for the disclosure of information exempted under Official Secrets Act, 1923 if the larger public interest is served.

Section 8 of the Act provides that no information should be disclosed if it creates an unwarranted invasion of the privacy of any individual.

This exception states that there is no obligation to disclose information which pertains to personal information, the disclosure of which has no nexus to any public activity or interest, or which would cause unwarranted invasion/intrusion of the privacy of the individual unless the more sufficient public interest justifies the disclosure of such information.

Changes in the recent Bill:

The Right to Information Bill will alter the provisions of service of the Central Information Commissioners and Information Commissioners at the center and in the states.

  1. The Bill intends to modify the fixed tenure of 5 years of the Information Commissioners as “for such term as may be prescribed by the Central Government.” 
  2. It further gives the rulemaking power to the Central Government to determine the pay and service conditions (salary structure) of the Information Commissioner. 

Implications:

The Bill will water down the independence of the information commissions by bringing them under substantive government control. Consequently, the right to information will become just an illusory without the independence of the Information Commissioners. 

Criticism:

  1. Critics believe that amending the two cardinal provisions of the act, as envisioned by the amendment bill, will jeopardize its effectiveness.
  2. Opposition parties argue that authorizing the Government to take a call on the tenure and salary structure of the RTI authorities will only rob their independence. Terming the Amendment as the “RTI Elimination Bill,” they have claimed that even honest officials will stop disclosing sensitive information if their jobs and salaries are at stake.
  3. The Amendment has disempowered common people while empowering the Central Government.
  4. The Amendment violates Article 19(1)(a) of the Indian Constitution. 

Conclusion:

By controlling the tenure and acquiring the authority to fix salaries, allowances and other terms of service, the Government has radically altered the character of the Information Commissions, consequently violating Article 19(1)(a) of the Constitution.

This amendment shall be challenged in the court to restore the status quo, failing which, the right to information would be virtually violated.

–This article is brought to you in collaboration with Gauri Suri from Army Institute of Law, Mohali.


Analysis: RTI portals, a viable option?

Reading time: 6-8 minutes.

On October 13, 2019 Supreme court of India asked the centre and 25 other states to reply on the plea seeking directions to establish RTI web portals across all the states in India. The plea was based on a PILs filed by an NGO named Pravasi Legal Cell in which the petitioner has contended that in no other state except Delhi and Maharashtra any RTI web portal has been established since the central government’s direction in this regard.

In December 2013 centre had requested all the state governments to explore if there is any feasibility to establish online RTI regime in the respective states. But since then none of the states except Delhi and Maharashtra have implemented online RTI system. In this article we’ll try to peruse the viability of establishment of RTI Portals across various States in India

What are the salient features of the RTI Act ?

Right to Information Act, 2005 remains a milestone of great importance in the evolution of Indian democracy. The various features of RTI Act are as follows:

  • Every citizen has right to sought information from public authorities.
  • Public authorities are under obligation to give information subject to certain restrictions such national security, privacy etc. within a specified period of time i.e.30 days.
  • Public authorities are required under the act to maintain records for a large amount of information and publish it in public domain.
  • All government departments along with some private bodies which receive the direct aid of government comes under the act.
  • Public Authorities are under obligation to provide the information as early as possible but not later than 30 days and in case of information affecting the life and liberty of an individual not later than 48 hours.
  • The act provides for setting up of State and central information commission in state and centre respectively which act as second appellate authority and also supervise the actions of public information officers.
  • In case of delay on the part of information officer or for non disclosure of information, a penalty of upto Rs 25,000 can be imposed on them by the State or central information commission.

What is the procedure to  file an RTI in India ?

There are two ways in which RTI may be filed:

  1. Physically/Offline
  2. Online

Physical method

There is no specific format in which an RTI application may be filed but there are a few particulars which need to be taken care of while filing an application.

  • Application of request may be typed or may be handwritten either in English, Hindi or in official language of area.
  • Application should be addressed to Central/State Public information officer and the name of concerned department form where information is sought must be mentioned along with its complete address.
  • The information to be sought must be clearly mentioned in specified form and if any document is sought must be mentioned for which applicant is required to pay extra fees specified by the  government.
  • A fees of Rs10 need to paid either by cash, money order, bank draft or a court fee stamp. The applicant who falls  below the  poverty line (BPL) are exempted to pay such fees provided a copy of BPL certificate is attached by them to the application.
  • Applicant’s full name, complete Address and contact details must be mentioned and the application should be properly signed.
  • Application may be send by post or may be hand over in person to the concerned department.

Online Application

As mentioned earlier this option is available across 431 public authorities in India. Following steps are required to file a RTI application online:

Step1: go to RTI Website and click on button Submit Request after checking the option I have read and understood the above guidelines.

Step2: The form will appear in which required details can be filled. Select the appropriate Ministry,  Department and fill in the contact details. Email Id is required but mobile number is optional.

Step3: Now the application plea can be filed in the textbox next to Text for RTI application in not more than 3000 characters. If the number of characters in application exceed this limit a separate document file  can be attached in PDF format of up to 1 MB size.

Step4: After filing the Security code click on Submit.

Step5: Now Application fee may be paid via credit/debit card or net banking.

Step 6: After the payment of fees an acknowledgement page will appear with unique registration number for request through which status of request can be regularly checked on RTI Page.

 What are the existing loopholes ?

  1. Pendency of cases: As per an article published in economic times (PTI DEC 5,2012 5.12 PM IST)there were around 27,000 appeals pending in CIC. According to same article each commissioner disposes 28,000 cases each year. CIC takes on an average 319 days to hear and pass an order for appeals while the maximum time taken was reaching 862 days. Hence, the delay in the disposal of cases causes the public distrust in the system.
  2. Non-Uniformity in State Rules: Section 27 and 28 of the act empowers the “state government” and ”competent authorities” respectively to make rules for the proper implementation of the act. By the virtue of this provision competent authorities misuse its power by increasing the fee required to seek information. Delhi High Court by the virtue of rule 10 of HC has raised the prescribed fees to Rs.500 instead of Rs.10 and and decreased the penalty for not furnishing information to Rs. 50/day from Rs. 250/day.
  3. Expensive Procedure: Due to non-uniformity of rules the competent authoritoies charges unreasonably expensive fees for furnishing information which makes such information inaccessible to common man.

What are the suggestions for reform ?

A few amendments in my opinion which should be made in the current act in order to cope up with problems of current RTI regime are as follows:

  • Appointments and Selection of officers: The aim of RTI act was to reduce corruption by bringing transparency in the administration of governance. Hence, it is the imperative that the CIC or SICs remain autonomous bodies without any influence of government. The present mode of appointment of officers is not proper and needs to be changed. The panel of recommendation committee for CIC must include “the chief justice of India” in place of “a union cabinet minister appointed by  Prime minister”.
  • Another measure should be bringing the position of CI commissioner close to election commissioner with fixed salary and tenure.Some kind of accountability should be there on First appellate authority  for wrong judgment and undue delay
  • Centralization of RTI Rules: Another challenge in the proper implementation of RTI acts is the non-uniformity of RTI rules in various public departments. This could be done by bringing some kind of uniformity in the RTI rules in some areas such as fee required and penalty imposed.
  • Rise in RTI Infrastructure: In order to cope up with increasing pendency of cases state must invest in RTI infrastructure. Both the centre and the states must allocate some part of its revenue for the RTI fund which must be utilized in raising infrastructure such as online RTI portals etc.  

What are the arguments raised in the petition?

The petitioner in this case argues that the objective of RTI is increasing transparency in the governance and it can only be achieved if there is timely response of request by the concerned department. Developing RTI portals online helps in reducing the the time of disposal of RTI request in the following ways:

  • Ease of Filing: RTI web portals contains the list of concerned departments along with their complete profiles. Further, particulars required to be mentioned are clearly mentioned on the web page. Hence filing of RTI becomes a lot easier through online portal.
  • Ease of payment: The payment of fee is much easier on the online portal as compared to physical method. On the top of that physical method requires Postal order to be made which is a further time consuming process.
  • Section 7(1) of the act requires the information regarding the life and liberty  to be given within 48 hours which is nearly impossible through physical method
  • Through online portals NRIs can easily seek information from concerned department who have to otherwise go through physical method in respective departments which is a tedious job.

Conclusion: The way ahead

RTI is the most powerful law in India as all the constitutional authorities in India comes under it. It has created a new generation of activists such as Anna Hazzare and Arvind Kejriwal. It has helped in strengthening civil societies who can further push government to make its policies more people-centric.

It makes the government more accountable to public by giving more power to a common man who can demand information from any government department and the department has to furnish information as soon as possible within 30 days. Establishing RTI portals online throughout the states will the raise the scope of this objective by timely disposal of RTI requests. The scope of RTI will also expand to NRIs who can easily seek and resolve their grievances online.

There are infrastructure challenges to development of online RTI regime. In this direction state and centre must allocate some part of their revenue to RTI fund and and utilize them in developing RTI infrastructure. Some modifications also needs to be made in the act to make the information officers more accountable for their actions. As they say “Knowledge is power” accessibility of RTI online to farther areas of the states shall also help in their future development. 

This article is brought to you in collaboration with Ankur Tyagi from Indian Academy of International Law and Diplomacy (ISIL), Delhi.