The definition of “public authority” in Section 2(h) of the Right to Information Act, 2005 (“RTI Act”) is elastic. Every now and then, its boundaries are stretched to bring yet another body within it. A recent order of the Central Information Commission (“CIC”) did exactly that when it directed political parties to appoint Central Public Information Officers and Appellate Authorities to respond to RTI applications. The Board of Control for Cricket in India has received a temporary reprieve, but the CIC may still decide whether the top governing body for cricket in India fits within those elastic limits.
First, let’s take a look at Section 2(h).
““public authority” means any authority or body or institution of self- government established or constituted — (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any — (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government”
Figuring out whether a particular case fits into the boundaries of statutory language is at the heart of the judicial process. Often, the answer is obvious, like the 2010 judgment of the Delhi High Court, which said that the Chief Justice of India came within the meaning of “public authority”. The case of political parties was trickier. The CIC admitted as much, when it said that they did not fit into clauses (a), (b), (c), and (d). After all, in spite of their role in the political process, political parties were quite clearly “not-government”.
Eventually, the CIC went beyond the notions of governmental origin and control and resorted to the term “substantially financed” in clause (ii). It relied on the expansive interpretation given to the term “includes” in a 2011 judgment of the Punjab and Haryana High Court, which said that non-Government organisations substantially financed by government funds was an independent category of “public authority”, distinct from those established or constituted by law made by the centre or the state.
When it interprets Section 2(h), the CIC is deciding on its own jurisdiction. That gives us reason to treat those interpretations with suspicion, but the provision itself is probably the clearest indication of the legislative intent to recognise a far-reaching right to information. In this context, the CIC referred to a similar provision — the definition of “state” under Article 12 of the Constitution — and said that the Section 2(h) net was intended to catch a lot more. It held that the Congress, the BJP, the CPI(M), the BSP, and the NCP have been substantially financed by the Union government. The Commission took note of the fact that all these parties had received land from the government at well below the market rate and that they could advertise for free on Doordarshan and All India Radio during election campaigns. The argument that government financing was not substantial was dismissed. “Substantial financing”, the CIC said, need not mean “majority financing”, just “not-trivial financing”. The crucial role of political parties in a democracy, and in particular, their powers under Schedule X of the Constitution, was also considered, but these were only secondary factors in arriving at the final conclusion.
The BCCI receives tax waivers, and until recently, was exempted from customs duty on the import of sports goods. Electricity and security at cricket stadiums is often subsidised, but it is not clear whether all this will amount to substantial financing. The CIC however, may not have to resort to clause (ii) of Section 2(h) because some BCCI operations can be controlled by the government. For instance, the Union government can use its power under Entry 10 of Schedule VII of the Constitution to make law on “foreign affairs; all matters which bring the Union into relation with any foreign country” and restrict the BCCI’s ability to represent India at international competitions. It can also restrict the BCCI’s ability to use the term “India” while referring to its team, under Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950.
On the other hand, autonomy from government is a prized virtue for sport, and the Olympic movement is unlikely to take kindly to a judicial determination that cricket’s top governing body in India is controlled by the Indian government.
(Aju John is part of the faculty on myLaw.net.)
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