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TMI Blog2010 (1) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Act is intended to harmonise the conflict between the right of the citizens to secure access to information and the necessity to preserve confidentiality of sensitive information. Noticing that even the preamble states that the Act is intended to provide the practical regime of right to information in order to promote transparency and accountability in the working of every public authority, it has been held that in terms of Sections 3 and 4, the public authorities are obliged to supply information. Considering the definition of 'public authority' in Section 2(h), it has been laid down that on the basis of the undisputed facts regarding the control and funding of the aided private colleges after the introduction of the Direct Payment Scheme, such an institution falls within the definition of the term 'public authority' notwithstanding whether it may, or not, be 'State' within Article 12 of the Constitution. It was specifically held that the Act is not confined to bodies answering the definition of 'State' under Article 12, which definition primarily governs enforcement of fundamental rights. Holding that the Act is intended at achieving the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, category or genus are followed by general words, there has to be an attempt to reconcile any incompatibility between the specific and general words and therefore, the elements brought into the definition of public authority by using the legislative device 'includes' should be read to be compatible with what is provided for in the earlier limb. It is accordingly pointed out that a body owned, controlled or substantially financed; or, a non- Governmental organisation substantially financed, directly or indirectly by funds provided by the appropriate Government, can fall within the definition of public authority under the RTI Act, only if it is one established or constituted by notification issued or order made by the appropriate Government. 5.On the basis of the materials, it was also argued on behalf of the appellants that infrastructure like college building, land etc. belong to the respective educational institution or educational agency and therefore, the mere payment of salaries and little allowances for maintenance of buildings, would not be decisive to hold that the aided colleges are substantially financed by funds provided by the Government. 6.With the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat of the High Court of Allahabad in Dhara Singh Girls High School, Ghaziabad v. State of U.P., AIR 2008 All 92 laying down that aided educational institutions are public authorities for the purpose of the RTI Act. Stand of the State of Kerala 10.Adv.Benjamin Paul, the learned senior Government Pleader, supporting the contentions of the Commission, made specific reference to the Statement filed on behalf of the Government showing the amounts paid as salary and other expenses; contingency and maintenance grant; UGC grant for the year 2008-09 and argued that there is no reason as to why an aided college is not to be treated as a public authority as defined in the RTI Act. Consideration by Court 11.The appellants represent different private colleges which are affiliated to the different Universities in the State of Kerala. Before the learned Single Judge and also before us, it is not disputed that after the introduction of the Direct Payment Scheme, teachers and staff of all aided private colleges are paid by the Government directly. Their retiral benefits are also paid from the exchequer. The emoluments, pattern, duties and conditions of service of the teaching and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms worked out in consultation with the Universities. 13.The Statement filed by the Government refers to sixteen colleges among the appellants. It shows that for the year 2008-09, the total amount spent by the State Government towards salary and other expenses to the staff of those colleges is more than Rupees forty four crores, sixty four and a half lakhs; UGC Grant is around Rupees two crores nineteen and a half lakhs and the contingency and maintenance Grant is around Rupees two and a half lakhs. The Government are also on record with the undisputed statement that in addition to the above, huge sums are spent from the State Exchequer towards retiral benefits of teachers who have demitted from service. 14.It is also pointed out on behalf of the State that the establishment cost towards salary and other expenses and contingency and maintenance Grant in respect of the colleges can be drawn only after the bills are countersigned by the concerned Deputy Director of Collegiate Education. The State has pointed out that therefore the colleges are functioning with substantial funds from the State Government and further that the State has financial control over the institutions. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an' a particular thing, certain things or acts, that definition is a hard-and-fast one and no other meaning can be assigned to the expression than is put down in that definition. That definition is an explicit statement of the full connotation of a term. Such a definition is prima facie restrictive and exhaustive. This principle is well settled by precedents. 18.But, where the word defined is declared to 'include' a particular thing, certain things or acts, such definition is prima facie extensive. The scope of the use of the word 'includes' in a definition clause, after laying down what a term 'means', as in the case in hand, calls for consideration from different angles. There are situations and situations. The words 'means and includes' may be used as a single phrase. In such cases, it could be treated as exhaustive. Reading the words ejusdem generis and applying the rule noscitur a sociis would be made in such case. See also Jagir Singh v. State of Bihar, AIR 1976 SC 997 and P.Kasilingam v. P.S.G.College of Technology, AIR 1995 SC 1395. However, when the definition clause states that the word 'defined' means a particular thing, things ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic, as commented upon by the Apex Court in Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907. This rule of interpretation and construction stands recommended through Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 as a sound rule of construction of statutes. The application of that rule enables consideration of four matters in construing a legislation: (i) What was the common law before the making of the Act, (ii) What was the mischief or defect for which the law did not provide, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which shall suppress the mischief and advance the remedy. The purposive approach to construction has been followed in innumerable decisions by the Apex Court and the different High Courts while dealing with penal or beneficial legislations, as also statutes which are restrictive or enlarging of the common law. 19.In the case in hand, if what are brought in by using the device 'includes' have to run ejusdem generis with all that would fall within sub- clauses (a) to (d) of Section 2(h) and if the rule: noscitur a sociis is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld merge, as we proceed hereunder, adopting the purposive approach. 20.In Thalapalam, the legislative history leading to the RTI Act was noticed to conclude that the change in the amplitude of the statute law relating to the field of freedom of, and right and access to, information shows that information in relation to private bodies would be information for the purpose of the RTI Act in as much as they would be accessible information, using different other legislative provisions. In the Freedom of Information Act, 2002, for short, the FOI Act , which was the predecessor and which stands repealed by Section 31 of the RTI Act, information meant only materials relatable to the administration, operations or decisions of a public authority. But, under Section 2(f) of the RTI Act, information includes information relating to any private body which can be assessed by a public authority under any other law for the time being in force. 21.The backdrop and legislative history leading to the RTI Act would show that the evolution of the right to information as a necessary concomitant of the right to freedom of speech has evolved and blossomed with the growth of the Judge-made la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by no means, absolute. 23.Noticing the aforesaid, it was held by this Court in Thalapalam (1), as follows: 17. We, the People of India have constituted ourselves into a democratic Republic; that Nation and her People, being governed by the Constitution of India. Democracy requires an informed citizenry and transparency of information that are vital to its functioning. Availability of information is necessary to contain corruption. The instrumentalities which meddle with public funds or with the interest of the citizens are to be made accountable. In actual practice, revelation of information is likely to conflict with other public interests, including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. It is necessary to harmonise these conflicting interests while preserving the paramount status of the democratic ideal. The RTI Act is enacted in this constitutional backdrop. The object sought to be achieved by that enactment is to provide for setting out the practical regime of right to information for citizens to secure access to information. The purpose of that is to promote transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental right to freedom of speech and expression. The authorization to make law imposing reasonable restrictions on that fundamental right is confined to be only in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Unlike in clause (6) of that Article which carves out the limits of legislative permissiveness to impose restrictions on the fundamental right to the freedom to practice any profession or to carry on any occupation, trade or business, clause (2) of Article 19 does not provide the interest of the general public as a ground on which the right to freedom of speech and expression could be curtailed. This distinction is well established. See Sakal Papers (P) Ltd. V. Union of India [AIR 1962 SC 305]. Unless justified under clause (2) of Article 19, any restriction on the fundamental right guaranteed by Article 19(1) (a) would be plainly violative of the freedom of speech and expression, a valuable and cherished fundamental right. The parliamentary presentment through the RTI Act is not a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that provision. It has to be remembered that it would never be assumed that the legislature uses language superfluously. The courts will not treat any legislative usage as surplusage, but will look at the very use of the language by the legislature, as intentional of conveying the true and complete meaning of what the legislature intended to say. As stated by the Apex Court in Babaji Kondaji Garad v. Basik Merchants Coop. Bank Ltd. [(1984) 2 SCC 50], the Legislature uses appropriate language to manifest its intentions. Arming of citizenry with information is not a matter that should be trimmed, crippled, clipped or excluded. It ought to be permitted to be available wherever it could, except where it is impermissible. This is why even in the Act, which transformed the concept of freedom of information to be that of a right to information, clear and specific exceptions and exclusions are legislatively provided and they are the only prohibited zones insulated from access under the RTI Act. This object of the RTI Act has to be achieved and the interpretation adopted above is purposive, to give effect to the legislative intention of that statute. 25.In Thalapalam (2), it was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Directive Principles of State Policy is canopied by all the constitutional beacons embedded in the preamble to the Constitution. In actual practice, this is worked out into reality even through private bodies which act as the conduit of carrying the State's funds and other funds in the control of the Government to the needy in the form of food, shelter, clothing, education, medicinal support, infrastructure facilities and what not. The law that existed before enacting the RTI Act, at the first instance, did not provide for any operational mechanism for the citizens to obtain information and therefore the assurance, that there is optimum use of the national wealth and other inputs for the public good. The FOI Act was found to be insufficient to answer the constitutional need of this Republican Nation. The mischief and defect that prevailed earlier was that there was lack of transparency of information. This led to an uninformed citizenry. In spite of being a democratic Nation, the citizens stood effectively excluded from contributing to the transparency in the functioning of the State and its governance and containing corruption in the instrumentalities which, and throug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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