2023 (4) TMI 159 - HC - Indian Laws

Scope of RTI - private unaided educational institution - Information sought under threat - 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 - HELD THAT - Undoubtedly, the co-operative societies were constituted under the State Co-operatives enactments. However, they were neither owned nor substantially financed by the State. The question of whether the societies were controlled by the State was discussed extensively from paragraphs 36 onwards of the SCC report. The Court held that the meaning of the expression control must be tested in the context of the RTI Act and not in any other context i.e., neither in the context of the expression State under Article 12 of the Constitution of India nor in the context of maintainability of the writ petition against a body or authority under Article 226 of the Constitution of India. Since the term control/controlled has not been defined in the RTI Act, they proceed to understand the scope of the expression set in context of the prior and subsequent terms i.e. in the context of a body owned and substantially financed . The overarching conclusion that has been arrived at by the Courts is thus to the effect that private unaided schools do not constitute public authorities that are amenable to the provisions of the RTI Act. There is however, a caveat - It cannot be disputed that educational institutions, whether private or public, perform a critical public function, being the dissemination of education. Hence, there must be, and the Court agrees with R1 on this, scrutiny of the manner and mode of such dissemination, and the quality maintained by the institutions. For this purpose, though not a public authority, they would still come within the ambit of the RTI Act, although by strict application of the provisions of Section 11 of the Act. Thus 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 one rendering public functions or in respect of which a public information officer holds information, such a request may be considered at the discretion of the officer, strictly in line with the procedure set out under Section 11 of the Act - the impugned order is set aside. This writ petition is allowed.

Summary

Issues Involved:
1. Whether a private unaided educational institution constitutes a 'public authority' under the RTI Act.
2. The scope and ambit of the RTI Act concerning private unaided institutions.
3. The applicability of Section 11 of the RTI Act to third-party information.
4. The procedural requirements under the RTI Act for accessing information from private bodies.

Issue-wise Detailed Analysis:

1. Whether a private unaided educational institution constitutes a 'public authority' under the RTI Act:
The petitioner, a private unaided college, received a request for information under the RTI Act, asserting that it qualifies as a 'public authority.' The court examined the definition of 'public authority' under Section 2(h) of the RTI Act, which includes bodies established by the Constitution, laws made by Parliament or State Legislature, or by notification/order of the appropriate Government, and bodies substantially financed by the Government. The Supreme Court's judgment in Thalappalam Service Cooperative Bank Limited and Others vs. State of Kerala and Others [(2013) 16 SCC 82] was referenced, where it was concluded that mere supervision or regulation by the Government does not make a body a 'public authority.' The court also cited the DAV College Trust and Management Society vs. Director of Public Instructions (2019 9 SCC 185) case, which reiterated that substantial financing by the Government is a key determinant.

2. The scope and ambit of the RTI Act concerning private unaided institutions:
The court analyzed whether private unaided educational institutions fall within the ambit of the RTI Act. It referred to Tyndale Biscoe School and Others vs. Union Territory of J&K and Others (AIR 2022 J&K 112), which concluded that private unaided institutions not substantially financed by the Government do not constitute 'public authorities.' However, the court acknowledged that educational institutions perform a critical public function and thus, there must be scrutiny of their operations. The court agreed that private institutions could still come under the RTI Act's ambit through Section 11, which pertains to third-party information.

3. The applicability of Section 11 of the RTI Act to third-party information:
Section 11 of the RTI Act deals with third-party information and the procedure for its disclosure. The court noted that the term 'third party' includes private bodies other than the citizen making the request. The petitioner, being a private body, qualifies as a third party. The court emphasized that information relating to a private body held by a public authority can be accessed following the procedure under Section 11, subject to exemptions under Section 8 of the Act.

4. The procedural requirements under the RTI Act for accessing information from private bodies:
The court highlighted the procedural steps under Section 11, which require the Public Information Officer (PIO) to notify the third party (private body) about the request for information and invite submissions regarding its disclosure. The PIO must consider these submissions and decide within 40 days. The court found that in the present case, the procedure under Section 11 was not followed. The Delhi High Court's decision in Poorna Prajna Public School v. Central Information Commission and Others was cited, which supported the applicability of Section 11 for third-party information and emphasized compliance with procedural requirements.

Judgment:
The court set aside the impugned order, clarifying that the third respondent could reiterate the request, which should be considered by the PIO in accordance with the RTI Act and its specific stipulations. The writ petition was allowed, and the connected miscellaneous petition was closed.