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TMI Blog2020 (5) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... v D. Karia, J. For the Petitioner : Dhaval C. Dave, Sr. Adv. and P.A. Jadeja For the Respondent : Shivang M. Shah and Aum M. Kotwal JUDGMENT 1. By this petition under Article 226 of the constitution of India, the petitioners have challenged the order passed by respondent no.2 Gujarat State Information Commission holding that the petitioners are public authorities within the meaning of section 2(h) of the Right to Information Act, 2005 ( Act-2005 for short) 2. Brief facts giving rise to this petition is as under. Petitioner no.1 GVGL Limited and petitioner no.2 GVFL Trustee company private limited are companies duly constituted and registered under the provisions of the Companies Act, 1956. 2.1. On 12th November, 2005, petitioner no.1 in its erstwhile name, Gujarat Venture Finance Limited received a communication dated 12th November, 2005 from respondent no.1 stating that on 8th November, 2005, an application was moved by the respondent no.1 before petitioner no.1 by addressing same to the Information Officer of petitioner no.1 soliciting information of nature referred to therein from petitioner no.1, which was not accepted by petitioner no.1 and therefore, respondent no.1 was const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate Mr. P.A. Jadeja for the petitioners submitted that the petitioner would not qualify as public authority within the meaning of section 2( h ) of the Act- 2005 because as per section 2( h ) of the Act-2005, unless a body is either owned, controlled or substantially financed by the appropriate Government, such body would not qualify as a public authority. It was submitted that if a recourse is made to the constitution and functioning of the petitioners, it would become evident that the petitioners are neither owned nor controlled nor substantially financed either directly or indirectly by the State Government. It was submitted that even no financial assistance is provided by the State Government to the petitioners. Both the petitioners depend upon their own source of generating the finds for the purpose of their activities and survival. Even the administrative control of the petitioners vest in the Board of Directors and there is also the State Government has no say of any nature. It was further submitted that the shareholding pattern of the petitioner no.1 also leaves no doubt that the State Government has not at all contributed to equity share capital of petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Government in its functioning. 4.4. It was submitted by Mr. Dave that the concept of State under Article 12 of the Constitution of India is akin to that of public authority under section 2( h ) of the Act and as a result thereof, the principle laid down by Supreme Court as well as this Court for the purpose of deciding an issue as to whether the State Government can be said to have deep and pervasive control in the functioning of any company so as to qualify the same as State within the meaning of Article 12 of the Constitution of India will definitely have a bearing in deciding an issue as to whether a particular company would qualify as public authority within the meaning of Act 2005 or not. It was submitted that the portion of the said section 2( h ) sought to be invoked against the petitioners is an inclusive proviso to the main text of the said section and hence the same cannot be interpreted to expand the scope of the main provision of the said section. 4.5. It was submitted by Mr. Dave that so far as petitioner no.2 is concerned the impugned order suffers from the vice of total non application of mind and in violation of principles of natural justice inasmuch as when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke that body a public authority within the meaning of section 2(h) (d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act. 45. We are, therefore, of the view that the word controlled used in section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. SUBSTANTIALLY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loser to 'material' or 'important' or 'of considerable value.' 'Substantially' is closer to 'essentially'. Both words can signify varying degrees depending on the context. 48. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as substantially financed by the State Government to bring the body within the fold of public authority under section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority under section 2(h)(d)(i). In view of the ratio of the aforesaid decision, it was submitted there is nothing on record to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be covered by section 2(h) of the Act-2005 by analyzing various types of institutes and which can be called as a public authority or body or institution as under : 12. The next contention is that a public authority can only be an authority or body or institution which has been established or constituted (a) under the Constitution; (b) by any law of Parliament; (c) by any law of State Legislature or (d) by notification made by the appropriate Government. It is the contention of the appellants that only those authorities, bodies or institutions of self government which fall in these four categories can be covered under the definition of public authority. It is also contended that in the Thalappalam case (supra) the Court did not consider the effect of clause (d) on the remaining portion of the definition. 13. On the other hand, on behalf of the respondents it is urged that the reading of section 2(h) clearly shows that in addition to the four categories referred to in the first part, there is an inclusive portion which includes (i) body owned, controlled or substantially financed; (ii) non Government organisation substantially financed, directly or indirectly by funds provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to add two more categories, the first being in sub-clause (i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government. These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be a public authority. 18. As far as sub clause (ii) is concerned it deals with NGOs substantially financed by the appropriate Government. Obviously, such an NGO cannot be owned or controlled by the Government. Therefore, it is only the question of financing which is relevant. 19. Even in the Thalappalam case (supra) in para 32 of the judgment, this Court held that in addition to the four categories there would be two more categories, (5) and (6). 20. The principle of purposive construction of a statute is a well recognised principle which has been incorporated in our jurisprudence. While giving a purposive interpretation, a court is required to place itself in the chair of the Legislature or author of the statute. The provision should be construed in such a manner to ensur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses... 22. Therefore, in our view, section 2(h) deals with six different categories and the two additional categories are mentioned in sub clauses (i) and (ii). Any other interpretation would make clauses (i) and (ii) totally redundant because then an NGO could never be covered. By specifically bringing NGOs it is obvious that the intention of the Parliament was to include these two categories mentioned in sub clauses (i) and (ii) in addition to the four categories mentioned in clauses (a) to (d). Therefore, we have no hesitation in holding that an NGO substantially financed, directly or indirectly, by funds provided by the appropriate government would be a public authority amenable to the provisions of the Act. 23. NGO is not defined under the Act or any other statute as far as we are concerned. In fact, the term NGO appears to have been used for the first time describing an international body which is legally constituted but nongovernmental in nature. It is created by natural or legal entities with no particip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD, etc. but those facilities or assistance cannot be termed as substantially financed by the State Government to bring the body within the fold of public authority under section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant in aid from the appropriate Government, may answer the definition of public authority under section 2(h)(d)(i). 26. In our view, 'substantial' means a large portion. It does not necessarily have to mean a major portion or more than 50%. No hard and fast rule can be laid down in this regard. Substantial financing can be both direct or indirect. To give an example, if a land in a city is given free of cost or on heavy discount to hospitals, educational institutions or such other body, this in itself could also be substantial financing. The very establishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n relying upon the averments made in affidavit in reply submitted that by virtue of impugned order, no fundamental, statutory or legal right of the petitioners can be said to have been abridged at the hands of respondent no.2. 5.1. On the merits of the case, it was submitted by Mr. Shah that petitioner company is a Government of Gujarat enterprise and is a body corporate registered under the Companies Act, 1956,. With regard to the nature of control and composition of finance, the Commission has found the petitioners to be falling within the ambit of section 2( h ) of the Act-2005. 5.2. It was submitted by Mr. Shah that the petitioner GVLF ltd is substantially financed from the funds of the State Government. The constitution of Board of Directors and the composition of the shareholding of the petitioner company are important determinants so as to judge whether it is controlled and/or financed by the appropriate Government. The petitioner is a venture of the State Government because fully state owned company GIIC Ltd has got 39.05% capital contribution in the petitioner no.1 company and therefore, directly or indirectly, the petitioner no.1 company can be said to be a substantially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s area of exercise in respect of all bodies covered under the definition of public authority under section 2( h ) of the Act-2005. 5.6. It was submitted by Mr. Shah that the Commission after having heard the parties concerned and on examination of facts before it, passed the impugned order dated 7th March, 2006 which requires no interference by this Court. It was further submitted that this Court may not interfere in exercise of writ jurisdiction under Article 226 and/or 227 of the Constitution of India. 5.7. It was further submitted by Mr. Shah that the petitioners being considered public authorities for the purpose of Act-2005, they are duty bound in law to appoint Public Information Officer as also an officer senior in rank to Public Information Officer who will function as an appellate authority under the Act-2005. It was further submitted that the petitioners are not right in contending that they are not either owned or controlled or substantially financed either directly or indirectly by the funds provided by the appropriate Government. The equity participation and capital contribution of the State Government are most relevant yardsticks to bring the petitioners within the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r instrumentalities accountable to the governed; (Emphasis supplied) As observed earlier in the judgement, the provisions of the RTI Act are dedicated to operationalising access to information held by public authorities. The scheme of the RTI Act and its applicability to the judiciary has already been examined in detail. In answering the third referral question, this Court can confine itself to the PART H statutory exemptions carved out from the general obligation of disclosure. When enacting the RTI Act, Parliament was cognisant that the unrestricted disclosure of information could be fiscally inefficient, result in real world harms and infringe on the rights of others. In addition to the extracts above, the preamble to the RTI Act also states: -AND WHEREAS revelation of information in actual practice 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; || (Emphasis supplied) ** ** ** 115. The information sought by the respondent pertains to (1) the correspondence and file notings relating to the elevation of three judges to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future I wish to add a few thoughts of my own on the subject. The collegium owes its birth to judicial interpretation. In significant respects, the collegium is a victim of its own birth - pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act. If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary - as it must, certain s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process. (Per : Sanjiv Khanna,J.) 88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counterarguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest. CONCLUSIONS 89. In view of the aforesaid discussion, we dismiss Civil Appeal No.2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows: An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. WHEREAS the Constitution of India has established democratic Republic; AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; AND WHEREAS revelation of information in actual practice 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; AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2( h ) exhausts the categories mentioned therein. The former part of 2( h ) deals with: (1) an authority or body or institution of self government established by or under the Constitution, (2) an authority or body or institution of self government established or constituted by any other law made by the Parliament, (3) an authority or body or institution of self government established or constituted by any other law made by the State legislature, and (4) an authority or body or institution of self government established or constituted by notification issued or order made by the appropriate government. 32. Societies, with which we are concerned, admittedly, do not fall in the above mentioned categories, because none of them is either a body or institution of self-government, established or constituted under the Constitution, by law made by the Parliament, by law made by the State Legislature or by way of a notification issued or made by the appropriate government. Let us now examine whether they fall in the later part of section 2(h) of the Act, which embraces within its fold: (5) a body owned, controlled or substantially financed, directly or indirectly by funds provided by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court of India ( supra ) by the respondent no.2 is also relevant, wherein the Apex Court after considering the various provisions of the Act-2005 and after applying the proportionality test held as under : 22. The expressions 'held by or under the control of any public authority' and 'information accessible under this Act' are restrictive15 and reflect the limits to the 'right to information' conferred vide section 3 of the RTI Act, which states that subject to the provisions of the RTI Act, all citizens shall have the right to information. The right to information is not absolute and is subject to the conditions and exemptions under the RTI Act. 23. This aspect was again highlighted when the terms 'information' and 'right to information' were interpreted in Thalappalam Service Cooperative Bank Limited ( supra ) with the following elucidation: 63. Section 8 begins with a non obstante clause, which gives that section an overriding effect, in case of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still there is no obligation on the public authority to give information to any citizen of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Registrar of Co-operative Societies, there may be other public authorities who can access information from a co-operative bank of a private account maintained by a member of society under law, in the event of which, in a given situation, the society will have to part with that information. But the demand should have statutory backing. 68. Consequently, if an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing. Thus, the scope of the expressions 'information' and 'right to information' which can be accessed by a citizen under the RTI Act have to be understood in light of the above discussion. 13. Under such circumstances, applying the ratio of the Apex Court to the facts of the case, it is not possible to hold that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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