This article has been written by Arundhati Roy.
Table of Contents
Introduction
The Parliament enacted the Right to Information Act in 2005 (hereinafter called the RTI Act 2005) to entitle the citizens to access information pertaining to a government department or any Public Authority. The right to information or RTI is a cardinal part of freedom of speech & expression guaranteed under Article 19(1)(g) of the Constitution of India, which has been turned into a statutory right with the passing of this Act by the legislators. Significantly, this right enables the citizens to enjoy democracy in its true spirit as it intends to make the government accountable to the governed and make its working mechanism transparent. It is to be noted that the RTI Act has also been brought into existence to restrain the prevailing corruption in the government system.
On bare perusal of the RTI Act, it is not stated that information concerning religious institutions is exempted from disclosure. As there is no explicit provision, it is a conundrum whether religious institutions should be obligated to provide information under the RTI Act, 2005. Until now, any information sought under RTI Act, 2005 regarding religious institutions such as temples, mosques, and churches has eventually landed into a controversy, raising the question of whether religious institutions come within the ambit of Section 2(h) of the RTI Act, 2005. In the present article, the impugned question, whether religious institutions can be brought under the scope of the RTI Act has been discussed in the light of the judgments made by the Madras High Court, Central Information Commission, Hyderabad High Court, and Kerala High Court.
RTI queries related to Ayodhya Ram temple construction
After the Supreme Court’s Landmark verdict on Ayodhya Land dated 9.11.2019, the Central Government had constituted the Shri Ram Janmbhoomi Teerth (SRJBT) Kshetra by a gazette notification on February 5, 2020. However, it is to be pointed out that even after the passing of a year, the Ministry of Home Affairs (MHA) has failed to provide any particulars regarding the appointment of a Central Public Information Officer (CPIO) of the SRJBT Kshetra, which is mandatory under Section 5(1) of the RTI Act. Under Section 5(1) of the RTI Act, it is mandatory to appoint a CPIO after establishing a Trust.
The Shri Ram Janmbhoomi Teerth Kshetra came into the limelight after the media reported that the trust had collected a whopping Rs 2100 crore as of January 2021. The fact that the amount collected by the trust was mostly public money should be taken into account, which makes it crucial that the trust maintain transparency. Another point of consideration is that, since the public has contributed to the trust, they have the right to know how their money is being spent. The trust can show its accountability only by providing information under the RTI Act, which is not the current scenario.
It is pertinent to know that an RTI activist had filed an RTI with the Ministry of Home Affairs and the SRJBT Kshetra. The RTI Application sought the details of the Central Public Information Officers (CPIO) and First Appellate Authority (FAA) for the SRJBT Kshetra, which is a public authority as the Central Government has established it.
The activist was surprised to see that he did not receive any reply from the SRJBT Kshetra. Aggrieved on receiving ‘no response,’ the activist filed a First Appeal dated 24.02.2021 with the Ministry of Home Affairs and sought information by asking the same query. This time also, the activist met with sheer disappointment as the reply received from the MHA dated 8.03.2021 stated that they do not have the information asked for. Furthermore, it was also stated in the reply that:
- The Ram Janbhoomi Trust is an autonomous organization/body.
- Information on SRJBT Kshetra’s CPIO is not available with the MHA.
On perusing the whole reply as provided by the MHA, it is nowhere stated that the Ram Janmbhoomi Trust does not come within the ambit of the RTI Act. So, this is again a suspicious factor as to why MHA did not provide information regarding the CPIO of the SRJB Kshetra.
Why should Shri Ram Janbhoomi Trust come under the scope of the RTI Act, 2005
The objective of the RTI Act says that it is an “Act provide for setting out the practical regime of right to information for citizens to secure access to information under the control of Public Authorities, in order to promote transparency and accountability in the working of every public authority.”
It is clarified from the objective of the RTI Act that every public authority shall come within the purview of the RTI Act and hence are responsible for furnishing any information sought under the RTI Act.
Section 2(h) of the RTI Act defined the term “Public Authority,” which means any authority or body or institution of self-government which is established or constituted:
- by or under the constitution;
- by any other law made by Parliament;
- by any other law made by the State legislature;
- by notification issued or order made by the appropriate government;
and includes any-
- body owned, controlled, or substantially financed;
- Non-governmental organizations are substantially financed, directly or indirectly, by funds provided by the appropriate government.
Moreover, Section 2(a) of the RTI Act provides for the definition of an Appropriate Government for better understanding. According to Section 2(a) of the RTI Act, “Appropriate Government” means “appropriate government” in relation to a public authority which is –
- Established;
- Constituted;
- Owned;
- Controlled;
- Substantially finance.
by funds provided directly or indirectly –
- by the Central Government or the Union territory administration, the Central Government;
- by the State Government, the State Government.
In order to determine whether any authority, body, or institution is a public authority, it has to fulfill the criteria as laid down under Section 2(h) of the RTI Act. As per the gazette notification issued by MHA for the constitution of SRJBT Kshetra dated February 5, 2020, the Ram Janmbhoomi Trust is a public authority without any uncertainty. Thus, it comes within the ambit of the RTI Act and is obligated to provide information under the RTI Act.
Premanand, Hereditary Trustee Etc. v. The Commissioner H. R. & C. E., Etc.
In the instant matter, the writ petition was preferred under Article 226 of the Constitution of India and was filed challenging the impugned circular issued by the Commissioner of the Hindu Religious and Charitable Endowment Department on March 27, 2012. Through the said impugned circular, the Commissioner of HR & CE informed all Zonal Joint Commissioners and Assistant Commissioners of the HR& CE Department that in respect of temples in which hereditary trustees are administering the temple as well as where there are scheme decrees, the trustees of the concerned temple were to be appointed as the Public Information Officers. This became necessary as there was a delay in providing information to an information seeker from those temples and also, the Tamil Nadu Information Commission also made a recommendation.
The petitioner contended that a temple coming under the purview of the HR&CE Department is not an administrative unit or an office of a Public Authority. Therefore, it cannot be brought under the definition of Section 2(h) of the Right to Information Act, and the petitioner had relied upon the judgment in the matter of “Bhanunni v. Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department by the Kerala High Court.”
The decision of Madras High Court
The Madras High Court dissented the petitioner’s contention that the temple cannot be brought under the purview of the RTI Act.
The Court observed that “in the present case, the temple is a public institution. Merely because a hereditary trustee administers it, the public character of a temple will not disappear. Temples are clearly brought under the HR&CE Act, and further, public collections are made for conducting various activities of the temples including rituals.”
The Court also pointed out that “the State Government also spends huge amounts every year for administering the department to manage the temples and releases various grants for conducting Kumbaghishekams periodically.”
“Therefore, the temple is not a private institution for the RTI Act. In fact, the temple is substantially financed by the State either in the form of administrative expenses or in the form of non-recurring expenditure; certainly, it would be the institution covered by the provisions of the Act”, held the Court.
With this observation, the Court dismissed the petition and further said that “once it is held that the provisions of the RTI Act cover the temple, certainly the unit will have to have a public information officer. In respect of hereditary temples and units run by scheme decrees, the information is only available with the trustees or trust boards. It is too much for the executive to seek information from those trustees and thereafter pass on the information to an information seeker. As rightly found in the impugned order, having dual authority will only create bottlenecks in the free flow of the information. As to what information is to be provided is also circumscribed by the provisions of the RTI Act.”
Thus, in the instant matter, the Madras High Court had brought the temples within the scope of the RTI Act. Furthermore, the Court highlighted that “under the RTI Act, even a private body which the State substantially funds is covered by the RTI Act. When information is sought for and if the temple’s activities will be kept secret, it may deteriorate the temple administration. There cannot be such contention that temple activities are private activities and not covered by the provisions of the RTI Act.”
Central Information Commission (CIC) and Tirupati Trust
A social activist, BKSR Ayyangar, had filed an RTI application with the PMO with the query that what action was being taken by the Government of India on his representation for declaration of Tirumala Tirupathi Devasthanam (TTD) temples as historical and national heritage monuments and had asserted that unless Tirumala Tirupathi temples are protected as ancient monuments, the nation will “lose its ancient structures, historical evidence with inscriptions, and cultural heritage.”
As Ayyangar was dissatisfied with the reply received from the PMO, he had approached the First appellate authority, the Ministry of Culture, who had transferred the appeal to the FAA of Archeological Survey of India (ASI). On being unsatisfied with the reply of the First appellate authority, the activist had gone for a second appeal which was filed before the Central Information Commission. The ground for filing the second appeal was that “incomplete information about the action in preserving the heritage structures in Tirumala Tirupati” was provided.
While holding that the Union Ministry of Culture and its Department of Archaeology have a duty to protect national monuments and ornaments of the Vijaynagar empire, the CIC had also observed that TTD had declined to answer under the Right to Information Act. The CIC held that being a public authority, the trust managing the affairs of the temples was answerable under the RTI Act.
Noting the submissions made by the activist Ayyangar in his petition, the CIC held in its order that “the TTD, being an intricate part of endowment administration, came into existence by an exclusive chapter in Andhra Pradesh (AP) statute, is a public authority. It deals with the people’s money and is totally controlled by the Government of AP, through Endowments Department, its members and chairman are appointed by the Government of AP. It is answerable as trust, as receiver of donations, as manager of ancient national monuments of the world heritage, whether declared or not under the Central and State Acts, as representative/part of the Government of Andhra Pradesh under the Act of AP and also under RTI Act, 2005.”
“Based on facts, law, their acquiescence, and judicial precedents, the Tirumala Tirupathi Devasthanam has to be a public authority covered squarely under Section 2(h) of the RTI Act,” said the Central Information Commission.
G. Rajenderanath Goud v. Government of Andhra Pradesh
Various religious institutions, charitable endowment trusts, and some of the trustees/Executive Officers of temples had filed writ petitions in G. Rajenderanath Goud v. Government of Andhra Pradesh before the High Court Telangana and Andhra Pradesh. All these writ petitions were heard together as they were filed challenging the circulars issued by the government, which directed the respective organizations to designate and constitute ‘Public Information Officers’ and other officers to operationalize the mechanism for providing information under the RTI Act, 2005.
The learned counsel for the petitioners contended that temples/charitable institutions do not answer the description ‘public authority as defined under Section 2(h) of the RTI Act 2005; hence, there is no obligation on Trustee, Chairpersons, Trust Boards and Executive Officers of the subject institutions to respond and furnish information concerning the temples/ temples institutions under the RTI Act.
Further, in support of their contention, the counsel for the petitioners had placed reliance on the judgment of the Kerala High Court in the matter of “Bhanunni v. Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department” [W.P. No.23149 of 2009], besides other judgments. In the instant case of Bhanunni v. Commissioner, the Kerala High Court had held that “Hindu Religious institutions and endowments are not the ‘public authorities’ as defined under the Right to Information Act, 2005 and the provisions of that Act do not apply to those institutions and their offices, officers and employees and the Executive Officer if any appointed by the government.”
Adjudication by the Telangana and Andhra Pradesh High Court
The Court, after taking consideration the submissions made by the learned Counsels, said that “on a close examination of Section 2(h), applying the tests laid down in the definition, it would be clear that the same does not fall under Section 2(h) (a) (b)& (c) as the temple is not established or constituted by or under the constitution, or by any other law made by the Parliament or State Legislature. The establishment or running of the temple’s affairs cannot be either owned, controlled, or substantially financed by the government. Though a temple could be said to be a non-governmental organization, as it does not depend for its finances, in any way, much less substantially, on the government either directly or indirectly, the same is also outside the purview of Section 2(h)(d)(ii).”
Moreover, the Court took note of the counsel for the petitioner’s reliance upon the verdict of Kerala High Court in the matter of Bhanunni v. Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department wherein it was held that Hindu Religious Institutions are not public authorities as per the RTI Act.
The Court agreed with the contentions of the various religious institutions, which can be inferred from the further observation of the Court. “The argument of the learned Counsel so far as the power of the State or its authorities concerning monitoring certain affairs of the temple cannot be denied; however, the question which begs consideration is whether, in the first instance, the institution falls within the definition of ‘public authority,’ as defined under the Act and not as understood either in general parlance or for the purpose of Article 12/226 of the Constitution which expanded the parameters of the ‘State.’ The answer would be a definite ‘no’ on account of the statutory provisions restricting the scope and authority in the Act,” observed the Court.
With the above observation, the High Court of Telangana and Andhra Pradesh held that “Religious institutions like temples, churches, mosques, which are not financed/funded by the government, do not fall within the purview of Right to Information Act, 2005.” The Court gave the said verdict on November 14, 2018.
Parting observation by the Court
The High Court, after giving the above judgment in the matter of G. Rajenderanath Goud v. Government of Andhra Pradesh, further held that since the religious institutions, nowadays, are receiving enormous amounts through different sources in the form of donations, “it is desirable to amend the Act at least to bring in its fold all the registered temples/institutions having income over and above a particular limit, to furnish information so as to have a greater vigil with respect to utilization of the monies, conducting affairs transparently and to achieve the objects of the RTI.”
Conclusion
After analyzing the decisions by the Madras High Court, Kerala High Court, High Court of Telangana and Andhra Pradesh, and the Central Information Commission, it is perspicuous that religious institutions which receive enormous amounts of donations from the public, substantially funded by the State or are managed or under the control of the State are a public authority as per the meaning given in the RTI Act and therefore answerable under the RTI Act, 2005. However, it is also pertinent to note that religious institutions such as temples, mosques, churches, which do not receive any financial aid or are funded by the government, do not fall within the ambit of the Right to Information Act, 2005 and hence are not under any obligation to provide information under the RTI Act. Therefore, it is essential to apply the test laid down under Section 2(h) of the RTI Act to declare any authority or body or institution as ‘public authority,’ to bring it within the purview of the Right to Information Act, 2005.
Also, in the words of Justice Challa Kondana Ram, in the matter of Rajenderanath Goud, huge amounts of donations that the religious institutions receive should be brought under RTI Act as to know how the money is being spent, how the affairs of these institutions are managed, everything should be transparent to the public. Therefore, to conclude, it can be said that the Right to Information Act should be amended so as to include religious institutions explicitly within its purview. Further, as it can be seen from the Ram Janmbhoomi Trust, wherein they have failed to comply with the provisions of the RTI Act, 2005 even after being clearly falling within the definition of a public authority, it stresses the point that RTI Act needs to be implemented stringently and a need to set up a mechanism to keep a check that the government is taking the efforts whether Central or State to implement the Act to achieve its objective to the fullest. In addition to this, it is paramount that the religious institutions that come within the ambit of the Right to Information Act, 2005 should endeavour to take all efforts necessary for providing information under the RTI Act and must comply with the provisions of the Act.
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