PRIVATE UNAIDED SCHOOL - PUBLIC AUTHORITY UNDER RIGHT TO INFORMATION ACT, 2005?

[Mr. M. GOVINDARAJAN]

Right to Information

The Right to Information (‘RTI Act’ for short) is an act of the Parliament of India which sets out the rules and procedures regarding citizens’ right to information. It replaced the former Freedom of Information Act, 2002. Under the provisions of RTI Act, any citizen of India may request information from a ‘public authority’ which is required to reply expeditiously or within 30 days. In case of matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours. The RTI Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

Information

The term ‘information’ is defined under section 2(f) of the RTI Act as any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force

Public Authority

Section 2(h) of the RTI Act defines the expression ‘public authority’ as any authority or body or institution of self- government established or constituted-

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

•  body owned, controlled or substantially financed;
• non-Government organization substantially financed,
• directly or indirectly by funds provided by the appropriate Government.

Issue

The issue to be discussed in this article is as to whether the private unaided schools will come under the purview of the RTI Act and subject to furnish the information as required by the applicant with reference to the decided case laws.

Case laws

All Universities and Colleges established by law made by Parliament or by State Legislature or by notification by the appropriate Government or owned, controlled or substantially financed directly or indirectly by funds provided by the Government shall come within the meaning of a Public Authority under this Act.  In D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY AND ORS. VERSUS DIRECTOR OF PUBLIC INSTRUCTIONS AND ORS. - 2019 (9) TMI 1351 - SUPREME COURT the Supreme Court held that the appellant society running various college/schools is a public authority within the meaning of the Act.  The documents filed by the Society shows that it has received grants for three years ranged from more than 3.6 crores to 4.5 crores and in percentage it is more than 40% of the total financial outlay for each year.  Since the society was substantially financed by the State it comes under the purview of the RTI Act.

In TYNDALE BISCOE SCHOOL AND OTHERS VERSUS UNION TERRITORY OF J&K AND OTHERS - 2022 (4) TMI 1518 - JAMMU & KASHMIR AND LADAKH HIGH COURT, the High Court has arrived at the following conclusions in respect of private unaided educational institution-

• A private unaided educational institution established and run by an independent society, trust or managing committee, which is not substantially financed directly or indirectly by the appropriate Government does not fall within the definition of ‘public authority’.
• A private educational institution which may require recognition or is recognized by the appropriate Government under any law for the time being in force does not ipso facto become a public authority within the meaning of term ‘public authority’ unless it is either owned, controlled or substantially financed by appropriate Government.
• Private unaided institution is not authority or body or institution of self government established or constituted by or under the Constitution; by any other law made by the Parliament; or by any law by the State Legislature; or by any notification issued and order made by the appropriate authority.
• Private unaided school/institution may not be a body under the control and substantially financed by the appropriate government, but such institution will fall within the definition of term ‘non-government organization’ and if it is found that such non government organization is substantially financed directly or indirectly by funds provided by the appropriate Government, it will be ‘public authority’ within the meaning section 2(h) of the RTI Act and therefore, obliged to provide requisite information to the information seek within the ambit and scope of the RTI Act.

The above conclusion is thus to the effect that private unaided schools do not constitute ‘public authorities’ that are amenable to the provisions of RTI Act.  There is however a caveat.

In V.S.B. ENGINEERING COLLEGE VERSUS CENTRAL INFORMATION COMMISSION, NEW DELHI AND OTHERS - V.S.B. ENGINEERING COLLEGE VERSUS CENTRAL INFORMATION COMMISSION, NEW DELHI AND OTHERS the petitioner is an unaided self financing private college.  An application was received from the third respondent, an individual.  The 3^rd respondent sought the following information from the petitioner-

• Certified copy of the application filed by the PGP College of Engineering and Technology for the first time to seek approval from AICTE, New Delhi, along with all enclosures appended therein with respect to the Handbook on approval process of AICTE to conduct the Engineering Courses, as per section 2(j)(ii) of the Act.
• Certified copy of all the applications submitted year wise along with the enclosures for seeking extension of approval from AICTE, New Delhi with effect from second year onwards till date.
• Permission to inspect all the features certified to be available by the Expert Visit Committee, in the petitioner’s college as per the Handbook on Approval Process prescribed by the AICTE, New Delhi, in accordance to section 2(j)(ii) of the Act, from first year to till date.

The third respondent also threatened that if the above said information was not supplied by the petitioner he would file an appeal before the Appellate Authority and would pray for the imposition of penalty upon the Principal and compensation under the provisions of the Act as well as de-recognition of the College by the AICTE, New Delhi and suitable action under the Prevention of Corruption Act, 1988.

The third respondent corrected the name of the petitioner for the college mentioned as ‘PGP College of Engineering and Technology’.

The petitioner sent a letter dated 03.09.2014 to the third respondent informing him that the information sought for are not required to be maintained under law and the same is not available with them.  Further the petitioner would not fall under the purview of the Act.  The petitioner also filed FIR against the third respondent.  On rejection of the request of the third respondent by the petitioner, the third respondent filed an appeal vide his letter dated 07.08.2014.  A copy of the appeal was sent to the petitioner by the third respondent.  But the progress of the appeal was not brought to the notice of the petitioner.  The petitioner received the appeal order on 06.11.2015.  The appellate authority found that the premises of the petitioner college, and in fact, any college for that matter, whether public or private, cannot be closed to the inspection of the public who have a public duty and right in the maintenance and upkeep of quality in such college.    It was also directed to facilitate inspection of the colleges on a suitable date and without any disturbance caused to the academic schedule and upon the payment of fees.

The petitioner, aggrieved against the said order, filed the present writ petition before the Madras High Court.  The petitioner submitted before the High Court that the Directorate of Education does not have an access to the minutes of the Managing Committee.  Under Rule 180(i) of the Directorate of Education are entitled to have access to the records of a private unaided school.

The High Court heard the arguments of the petitioner.  The High Court analyzed the provisions of-

• Section 2(f) - definition of the term ‘information’;
• Section 8 - Exemption from disclosure of information;
• Section 11 -Third party information;
• Section 22 - Act to provisions of notwithstanding have overriding effect.

The High Court also relied on various judgments.  The High Court held that the caveat is answered to state that where information sought for by a querist, relates to an authority that is not a ‘public authority’,  but a private once rendering public functions or in respect of which a public information offices holds information, such a request may be considered at the discretion of the officer, strictly in line with the procedure set out in Section 11 of the Act.  The High Court set aside the impugned order.  The High Court further made it clear that nothing would precluded the third respondent for his request, which is received by the Public Information Officer concerned shall be considered in accordance with law and specific stipulations under RTI Act.