This article is written by Aarushi Mittal. The article aims to provide a comprehensive overview of the case of D.A.V. College Trust and Management Society v. Director of Public Instructions (2019). It discusses in brief the Right to Information Act, 2005, and examines in detail various aspects and intricacies of this judgement.

Introduction

The Right to Information Act, 2005 (hereinafter mentioned as the “RTI Act”) is responsible for promoting transparency and accountability in the working of government bodies and resisting corruption in our government system. These bodies are further defined under Section 2(h) of the RTI Act as “public authorities”. In D.A.V. College Trust and Management Society v. Director of Public Instructions (2019), the Court addressed the issue of whether the definition of “public authority” under Section 2(h) of the RTI Act, 2005 includes Non-Governmental Organisations (NGOs) in its ambit. A division bench of the Supreme Court decided this matter, thereby widening the scope of the RTI Act and holding bodies such as NGOs substantially financed by the appropriate government responsible for furnishing information under the Act. Essentially, the Court broadened the definition of “public authority” under the RTI Act by giving people the right to access information pertaining to these organisations, thereby upholding the principal objectives of the RTI Act and the fundamental rights of citizens.

Details of the case

  • Name of the case: D.A.V. College Trust and Management Society v. Director of Public Instructions
  • Citation: AIR 2019 SC 4411
  • Name of the Appellants: D.A.V. College Trust and Management Society, New Delhi, and the appellant parties of the three cases on appeal: D.A.V. College, Chandigarh,  M.C.M. D.A.V College, Chandigarh, and D.A.V. Senior Secondary School, Chandigarh.
  • Name of the Defendant: Director of Public Instructions and Ors.
  • Date of judgement: 17th September 2019.
  • Name of the court: The Supreme Court of India 
  • Bench: Justice Deepak Gupta and Justice Aniruddha Bose.

Right to Information Act, 2005

Before delving into the case in detail, it is first pertinent to know about the RTI Act. The RTI Act was adopted in 2005. It was passed by both houses of Parliament and received the President’s assent on 15 June 2005. In the landmark case of Raj Narain v. State of Uttar Pradesh (1975), the Supreme Court held that the right to information was a fundamental right under Article 19(1) of the Constitution. It further ruled that the people of the country had the right to know about the workings of the government. The Act serves as an essential tool for the exercise of such rights and enables individuals to question the workings of various government bodies. It promotes transparency and accountability in government functioning by requiring government bodies to furnish information about their operations and work. It attempts to counter corruption and imposes penalties on non-complying government bodies. 

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Under the RTI Act, citizens can seek any information that the government is able to disclose to Parliament. The Act ensures that public authorities disclose information and specifies the time frame within which the disclosure is to be made as well as the procedure to be followed for such disclosure. It sets up information commissions at the state and central levels through which access to such information is provided to citizens. These public authorities are also required to maintain records as per Chapter II of the said Act. However, Section 8 of the Act lays down the information that is exempted from disclosure, such as any information prejudicial to the sovereignty and integrity of India or that pertains to the security, economic, scientific, or strategic interests of the state. 

Section 2(h) of the RTI Act defines the expression “public authority” to “mean any authority, body, or institution of self-government that is established or constituted: 

(a) by or under the Constitution of India; 

(b) by any other law made by the Parliament; 

(c) by any other law made by the State Legislature; 

(d) by notification issued or order passed by the appropriate government;

and includes any 

(i) a body owned, controlled, or substantially financed; 

(ii) non-government organisation substantially financed, directly or indirectly, by funds provided by the appropriate government”.

The applicability of the provisions of the RTI Act extends only to those bodies that fall under the above-mentioned definition of “public authority.”

Facts of the case

In the present case, a civil petition was brought before the Supreme Court by D.A.V. College Trust and Management Society, New Delhi, D.A.V. College, Chandigarh, M.C.M.D.A.V. College, Chandigarh, and D.A.V. Senior Secondary School, Chandigarh. These institutions, both schools and colleges, were established by the D.A.V. College Trust and Management Society, which was responsible for managing and running many such independent colleges and schools. 

These institutions were initially receiving financial aid of up to 95 percent from the Union territory of Chandigarh, which was later reduced to 45 percent. They were asked to furnish information relating to the annual fee structure for various educational programmes, classes, scholarship programs, diplomas, add-on courses offered by them, and other such information pertaining to college admissions under the RTI Act. The appellants claimed that these institutions, being NGOs, could not fall under the ambit of “public authorities” defined under Section 2(h) of the RTI Act and therefore were not subject to its provisions. They argued that the RTI Act was only applicable to “government and its instrumentalities” as defined in the Section, and thus the proceedings initiated against them by the Director of Public Instructions under the RTI Act were not valid. Further, since these institutions were not receiving financial aid amounting to more than 50 percent, they were not “substantially funded” by the government.

Issues raised in the case

  1. Whether NGOs substantially funded by the government fall under the purview of Section 2(h) of the RTI Act; and
  2. Whether the appellants in this case were substantially funded by the government.

Arguments of the parties 

Appellants

The appellants contended that, as per the words of Section 2(h), only those “authorities, bodies, or institutions” that were in fact concerned with self-government were public authorities. They argued that the objective of the Act was to cover only those government bodies and instrumentalities within its scope that were accountable to the government. The appellants claimed that no body, authority, or institution that was outside the ambit of clauses (a) to (c) of Section 2(h) could be held to be a “public authority” except if a notification was issued by the appropriate government authority as under clause (d). Further, they claimed that there were four types of “public authority” as mentioned in the section, namely, 

  • Those set up by the Constitution, or
  • Bodies established by an Act of Parliament, or
  • An authority formed as a result of a law made by the State Legislature, or 
  • A body established by a notification issued by the relevant government authority. 

The appellants argued that outside of these four types, no other body could be considered a public authority, and, therefore, since the appellants did not fall under these categories, they could not be termed as public authorities. Moreover, they contended that the bodies concerned in the present case were not “substantially financed” by the government.

Respondents

The respondents contended that, as per the wording of Section 2(h) taken in consonance with its four clauses, it also specifically included all those bodies that were “owned, controlled, or substantially financed and non-governmental organisations substantially financed directly or indirectly by the government”. Thus, they submitted that the appellant bodies were well within the scope of public authority. 

Furthermore, the respondents argued that the documents presented before the Court showed that the funds granted to these institutions by the Union territory of Chandigarh amounted to nearly half of the institutions’ total expenses. Moreover, approximately 95 percent of the salaries of the institution’s teaching and non-teaching staff were generated from government funds. Therefore, the respondents argued that it could be reasonably inferred that the appellant bodies were substantially financed by the appropriate government.

Judgement in D.A.V. College Trust and Management Society & Ors. vs. Director of Public Instructions & Ors. (2019)

Justice Deepak Gupta, after examining the relevant parts of the RTI Act and considering both sides’ arguments, drafted the judgement for Justice Aniruddha Bose and himself. The primary question before the Court was whether NGOs substantially financed by the appropriate government authority fell under the scope of “public authority” defined in Section 2(h) of the RTI Act. Further, the Court was to determine whether the appellants were such NGOs “substantially financed”. 

By examining various judicial precedents and applying the principle of purposive construction, the Court held that NGOs and the bodies mentioned in sub-clauses (i) and (ii) in the second part of the definition are to be included in addition to the four categories listed in the first part of the Section. Thus, NGOs substantially financed, directly or indirectly, by the appropriate government authority would be a “public authority” as per the relevant provisions of the RTI Act. Appellant No. 1 was found to be receiving government grants amounting to about 44 percent of the entire college’s expenditure. Further, 95 percent of the salary of its teaching staff was being borne by the state government. It was observed that teaching was the most important function of the organisation, essential to its functioning, and therefore, such funding would be considered substantial. Thus, the Court held the body to be substantially financed and a public authority within the meaning of Section 2(h) of the Act. 

With regard to the other appellants, the Supreme Court found that the High Court erred by not taking into consideration whether the bodies were “substantially financed” or not. Accordingly, the appeals were remitted to the High Court to determine the same. 

Precedents referred to in the case

The Court began by examining the definition of “public authority” as interpreted by this Court. The Court referred to Thalappalam Service Cooperative Bank Ltd. & Ors. v. State of Kerala & Ors. (2013), where the Registrar of Cooperative Societies issued a notification declaring that all cooperative societies fell within the purview of the RTI Act. The said notification was challenged before this Court, which, while examining the definition of “public authority” in Section 2(h), decided on the issue of whether cooperative societies were “public authorities”. It was observed that in cases where the definition of a term intends to “mean” something, it is to be construed in a narrow and strict sense. However, when the same definition uses the word “includesʼʼ the definition intends to be interpreted in a wide and exhaustive manner. The meanings of the terms “means” and “includes” have been thoroughly explained by the Court in DDA v. Bhola Nath Sharma (2010). Whenever these terms (“means” and “includes”) are used in an Act or statute, they hold a specific meaning within the context of such Act that is invariably prescribed. Thus, the Court held that it was a settled rule of interpretation of the law that whenever the words `means and includes” are provided in the definition clause, both words are given equal importance and neither can override the other. 

Further, in P. Kasilingam v. P.S.G. College of Technology & Ors. (1995), the Supreme Court, while interpreting “means and includes”, had observed that the word “means” in a section indicated that the definition was clear, precise, and exhaustive. Whereas “includes” was used by the legislature to widen the scope of the definition to ensure it was not interpreted strictly. The Supreme Court cited similar judgments given by the courts on this issue, namely, Bharat Co-operative Bank (Mumbai) Ltd. v. Co-operative Bank Employees Union (2007) and Delhi Development Authority v. Bhola Nath Sharma (Dead) by L.Rs. & Ors. (2011). It was noticed by the Court that, in P. Kasilingam, the phrase “means and includes” was used in the section, whereas, in the present case, they have not been used together. The first part of sub-section 2(h) has the word “means” and the second part uses the word “and includes any”. This was observed to expand the definition to cover bodies other than those mentioned in clauses (a) to (d) of Section 2(h). Therefore, the Court ruled that NGOs and the bodies mentioned in sub-clauses (i) and (ii) in the second part of the definition are to be included in addition to the four categories listed in the first part of the Section. By inserting an inclusive clause into the definition, the legislature intended to broaden the definition of “public authority” to include anybody “owned, controlled, or substantially financed by the government” and NGOs substantially financed by the government. Such a body may not be constituted by an Act of Parliament or State Legislature, by the Constitution, or by a notification issued in that regard. 

Moreover, while dealing with the appellants’ argument that the colleges and schools are not substantially financed, the Court referred to the Thalappam case, wherein it had made multiple observations on this matter. Here, the Court noted that the word “substantial” was defined in Black’s Law Dictionary to mean “of real worth and importance” or “of considerable value”. Similarly, “substantially” is defined to mean “in substance” as a substantial thing. It was observed that “substantially” was not a synonym of the word “majority” but was closer in meaning to “material or important”. The Court concluded that merely providing grants, privileges, subsidiaries, etc. could not be considered “substantial funding” unless there is a record to show the contrary. Essentially, unless it can be shown that the body practically runs on such funding and, without the same, the body would fail to carry out its operations, such grants, subsidiaries, or privileges are not automatically deemed to constitute “substantial funding”. Furthermore, the state often introduces schemes that provide financial support or guarantees in the interest of public welfare, and such assistance and schemes provided to bodies or institutions could not be termed substantial funding. The Court held that substantial meant a large portion, which did not necessarily mean a majority part or greater than 50 percent. It was ruled that there could not be a fixed rule, and the same was to be decided based on the facts and circumstances of the case.

Rationale behind the judgement  

By applying the principle of purposive construction of a statute, the Court placed itself in the chair of the legislature, or the author of the statute. The principle requires the provision to be construed in a manner that ensures that the object of the Act is achieved. When the language of the statute is clear, the court cannot be permitted to give its own interpretation. However, in cases of ambiguity in the language of the statute, the court is to refer to the objects and reasons provided in the statute and find out the meaning interpreted by the drafters of such a provision. The Court referred to its previous decisions in the cases of New India Assurance Company Ltd. v. Nusli Neville Wadia & Anr. (2008) and Abhiram Singh v. C.D. Commachen (Dead) by L.Rs & Ors. (1996) that discussed the principle of purposive construction of a statute in detail. Accordingly, the Supreme Court interpreted the provisions in question as per the purpose of the statute and the intention of the legislators and ruled that NGOs substantially financed, directly or indirectly, by the appropriate government authority would be a “public authority” as per the relevant provisions of the RTI Act.  

Furthermore, it was observed by the Court that NGOs were not defined by the RTI Act or any other statute but were described as bodies “legally constituted but non-governmental in nature”. These bodies were established by natural or legal entities with no involvement or representation from the government. Thus, the Court observed that colleges and schools would form part of such a definition. The Court further explained that even those organisations that were partially or completely funded by the government could be defined as NGOs if they were administered independently and did not include any government representation. Even a society that is neither owned nor controlled by the government could be an NGO, if it is substantially financed, either directly or indirectly, by the government, as it would fall under sub-clause (ii) of Section 2(h).

Having established the above, the Bench thereafter examined the meaning of the expression “substantially financed”. It defined the term “substantial”  to mean a large portion but not necessarily a major portion or more than 50 percent. Substantial financing may be direct or indirect. To explain the same, the Court considered certain examples. If, in a city, a piece of land is given free of charge or at a considerable discount to any educational institution, hospital, or other body, such a body may be considered to be substantially funded. Essentially, if the very existence of such an institution or body is dependent on it receiving land at a cheaper rate, the body is said to be “substantially financed”. Thus, no blanket rule could be laid down in this regard and had to be decided based on the facts on a case-by-case basis. There may be a case where the funding provided is more than 50 percent, but it may not be considered “substantially financed”. For instance, in the case of a small NGO with a total capital of Rs.10,000, it receives monetary assistance from the government amounting to Rs.5000. Here, although the government funding is 50 percent, it cannot be termed “substantial”.  Similarly, a body may be “substantially financed”, although the amount of funding is less than 50 percent. For instance, if an NGO receives hundreds of crores of rupees as a grant, even though such an amount is less than 50 percent, the body is considered to be “substantially financed”.  

The Court found that whether the body, organisation, or NGO was able to carry out its activities effectively in the absence of financial assistance from the government would be an important consideration in deciding whether the authority may be “substantially financed”. Keeping in mind that the RTI Act was enacted with the objective of ensuring transparency in public dealings and that citizens have the right to know about the source of funding and the operations taking place within these bodies, any NGO, body, or institution receiving substantial funding from the government would be liable to comply with the provisions of the Act. In light of all of the above, the Court began examining each of the cases independently. The Court observed the following:

  1. Appellant No. 1 received government grants amounting to about 44 percent of the college’s expenditure. 
  2. With regards to the college and the school, the funding from the state was around 40 percent and 44 percent, respectively, of the total expenditure for each year. 
  3. Further, 95 percent of the salaries of both the teaching and non-teaching staff of the college are borne by the state government. The remaining expenses borne by the college were with respect to hostels, etc. 
  4. The Court also noted that teaching serves as a significant function of colleges as opposed to other expenses, such as hostels, infrastructure, etc.

These were considered to be substantial payments, and they were also seen to have increased substantially over the years. Therefore, it was held that these colleges and schools were held to be “substantially financed” and are public authorities within the meaning of Section 2(h) of the RTI Act. 

Conclusion

Under the RTI Act, public authorities are required to make certain disclosures regarding their structure and various aspects of their functioning. Such disclosures sought by citizens ensure transparency and accountability in their operations. The judgement gives a wide interpretation of the definition of “public authority” under the RTI Act. It includes within its scope all organisations or bodies that receive substantial financial assistance from the appropriate government authority, thereby expanding the scope of bodies that fall within the ambit of the Act. This, in turn, expands access to information for citizens, furthering the intentions and objectives of the RTI Act.

Frequently Asked Questions (FAQs)

Is the right to information a fundamental right?

The right to information is a fundamental right that allows every citizen access to information from public bodies and authorities. It is a component of Article 19(1)(a) of the Constitution of India. In State of Uttar Pradesh v. Raj Narain (1975), the Supreme Court explicitly directed public bodies to make all the necessary information accessible and available for the citizens of this country. Following this verdict, the right to information was granted the status of a fundamental right under Article 19(1)(a) of the Constitution of India, along with the right to freedom of speech and expression. 

Who is eligible to file an RTI application?

Only an Indian citizen can request information under the RTI Act. They must provide their name, address, and other required details to access the information.

Are there any laws that provide for the non-disclosure of information?

There are certain laws and provisions, apart from those mentioned in the RTI Act, that allow the non-disclosure of the requested information. Sections 123, 124, and 162 of the Indian Evidence Act, 1872, specify the conditions under which the information can be kept concealed. According to these laws, the respective authorities and officials can deny the requested information. Additionally, the Official Secrets Act, 1923, also provides for information to be withheld and labelled as a secret.

Where is an RTI application filed? 

An RTI application can be filed online or sent via post.

References

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