2022 (4) TMI 1518 - HC - Indian Laws

Validity of action of the respondents for forcing, pressuring and compelling the petitioner-schools to provide information to various persons under the Right to Information Act, 2005 - seeking information with regard to affairs of the petitioner-schools under the Act of 2005 - scope of expression public authority as defined under Section 2(h) of the Act of 2005 - HELD THAT - Definition of two expression i.e. information and right to information given in Section 2(h) and 2(j) of the Act of 2005 when considered in juxtaposition and interpreted in harmony with each other would unequivocally and clearly manifest that not only the information which is held by the public authority can be accessed under the Act of 2005 but such information as is under the control of such authority, too, can be accessed. Information relating to any private body which can be accessed by a public authority under any other law for the time being in force can also be accessed by the information seeker under the Act of 2005. There is no doubt that in terms of Section 22, Act of 2005 has been given overriding effect over any other law for the time being in force or instrument having effect by virtue of any law other than the Act of 2005 - The Society herein need not be a public authority but if the information lying with such private body can be accessed by the public authority under law, the same can be provided by public authority on an application filed by an information seeker. This petition is disposed of by holding that Tyndale Biscoe Mallinson Society, which has established and is running the petitioner-educational institutions is not a public authority, as defined in Section 2(h) of the Act of 2005 and, therefore, information in its exclusive possession cannot be accessed directly from it by the information seeker under the provisions of the Act of 2005. Information seeker may, however, approach the public authority to obtain information relating to the petitioners and the public authority shall be bound to provide such information in relation to petitioners as may be in its possession or which can be accessed by it under any other law for the time being in force. The public authority before supplying such information shall put the petitioners on notice and adjudicate the objection, if any, raised by it under Section 8 of the Act of 2005 or any other similar provision contained in the Act of 2005.

Summary

Issues Involved:
1. Whether private unaided educational institutions fall under the definition of "public authority" as per Section 2(h) of the Right to Information Act, 2005.
2. Whether the Chief Education Officer, Srinagar, can compel private unaided educational institutions to provide information under the Right to Information Act, 2005.
3. The extent to which information held by private unaided educational institutions can be accessed by public authorities under the Right to Information Act, 2005.

Detailed Analysis:

1. Definition of "Public Authority" under Section 2(h) of the Right to Information Act, 2005:
The petitioners, private unaided educational institutions, argued that they do not fall within the purview of "public authority" as defined under Section 2(h) of the Right to Information Act, 2005. Section 2(h) defines "public authority" to include any authority or body established by the Constitution, by any law made by Parliament or State Legislature, or by notification issued by the appropriate Government, and also includes bodies owned, controlled, or substantially financed by the Government.

The Court noted that the petitioners are unaided private schools established and recognized under the J&K School Education Act, 2002, and are not receiving any grant-in-aid or substantial financing from the Government. Therefore, they do not fall under the categories specified in Section 2(h).

2. Compulsion to Provide Information:
The respondents argued that since the petitioners perform a public duty of imparting education and have established their institutions on lands provided by the government at nominal prices, they should be considered public authorities. However, the Court held that merely providing land at concessional rates does not amount to substantial financing by the Government. The Court relied on the Supreme Court's judgment in D.A.V. College Trust and Management Society v. Director of Public Instructions, which clarified that substantial financing means more than 50% of the funds required for running the institution.

3. Access to Information by Public Authorities:
The Court examined whether information held by private unaided educational institutions can be accessed by public authorities under the Right to Information Act, 2005. Section 2(f) defines "information" to include any material in any form, including information relating to any private body which can be accessed by a public authority under any other law for the time being in force. Section 2(j) defines "right to information" as the right to information accessible under the Act, which is held by or under the control of any public authority.

The Court concluded that while the petitioners are not public authorities, any information that a public authority can legally access from them under any other law can be provided to an information seeker. The public authority must notify the petitioners before supplying such information and consider any objections raised under Section 8 of the Act.

Conclusion:
1. Private unaided educational institutions established and run by an independent society, trust, or managing committee, which are not substantially financed by the Government, do not fall within the definition of "public authority" under Section 2(h) of the Right to Information Act, 2005.
2. These institutions do not become public authorities merely by requiring recognition or being recognized by the Government.
3. Information held by such private institutions can be accessed by public authorities if it is information that the public authority is entitled to access under any other law.
4. The Chief Education Officer, Srinagar, cannot compel private unaided educational institutions to provide information directly under the Right to Information Act, 2005, but can provide information that is in their possession or legally accessible from these institutions.

The petition was disposed of by holding that the Tyndale Biscoe & Mallinson Society is not a public authority under Section 2(h) of the Act, and information in its exclusive possession cannot be accessed directly by information seekers under the Act. Information seekers may approach public authorities to obtain information related to the petitioners, subject to the provisions of the Act.