Burden of proving that an NGO is substantially financed has been placed on the RTI applicant
The Supreme Court has ruled yesterday that all Cooperative Societies cannot be treated as public authorities en masse just because a Government notification says so. This judgment reiterates only some of the principles of how the phrase "substantially financed" must be understood in the context of non-government organisations under the Right to Information Act, 2005 (RTI Act). LINK - http://www.rtifoundationofindia.com/circular/ThalappalamSerCoopBankLtd&Ors-v-StateofKerala&Ors-SCI-Oct13.pdf
With the greatest respect to the wisdom of the Apex Court it is submitted that this judgment in some ways also departs from the main principle recognised by many High Courts and Information Commission about treating subsidies, grants and exemptions extended to NGOs amount to substantial financing. Ultimately the cost of funds provided by the Governments and the exemptions and subsidies are borne by the taxpayer. So these kinds of support are still being given by the governments at the cost of the public exchequer. If these kinds of support were not extended to such bodies, the tax and revenue kitty would be much larger, especially where prime land is leased out at rentals of Re. 1/- for several decades. so many PPP projects and private bodies in the corporate sector have benefited at the cost of the taxpayer. Pray why should they not be required to be transparent directly to the people?
With the greatest respect to the wisdom of the Apex Court it is submitted that this literal interpretation will create more litigation from NGOs that have already been declared by High Courts as being substantially financed on these grounds. The ultimate effect of taking such a view has unfortunately not been adequately assessed. All NGOs that have been declared public authorities so far are engaged in some public activity or the other. By saying that they do not come under the RTI Act unless the phrase "substantially" financed is proven in the manner described by the Apex Court the jurisprudence developed in the past has been reversed at one stroke.
Further, the burden of proving that an NGO is substantially financed has been placed on the RTI applicant by the Apex Court. With deepest respect to the wisdom of the Apex Court, I believe this requirement is most unfortunate. In all other countries where NGOs are supported by government aid or funds, the concerned departments list them out in a schedule attached to the RTI law or notify them separately. The government which extends funds and aid is best placed to determine whether nor not a body is substantially financed or not in the first instance, subject of course to adjudication in courts. Restricting the citizen's fundamental right to information by saying that he/she must prove whether an NGO is substantially financed amounts to placing an unreasonably high burden on the RTI applicant who may not have access to official information about the kinds of financial support that the NGO may have received from any government.
In my humble opinion it is not enough to merely interpret the literal meaning of the law. The effect of such interpretation must also be kept in mind particularly from the perspective of accountability of these organisations to the public. Transparency is not just for its own sake. It is a sine qua non for establishing accountability and the rule of law which underpin our democracy. Rule of law is an inherent part of the basic structure of our Constitution. These are the principles that informed the judgments of so many High Courts which declared many NGOs to be substantially financed by governments. The compilation I had circulated earlier is attached so that readers may verify my arguments for themselves from the extracts of the judgments quoted in this note.
All in all, political parties are going to be very happy reading this judgment as they can use it now to support their clams of being private bodies. However, it must be remembered that as elements constituting a multi-party system which is an inherent part of the basic structure of the Indian Constitution, political parties cannot get away from the duty of transparency as easily as other NGOs (3rd attachment contains a detailed note explaining these arguments).
This is but a preliminary analysis of the Apex Court's judgment. A more detailed one will follow later.
The views expressed in this mail contain my opinion only and I am disseminating them in a personal capacity. I request readers not to make any undue inferences about the views of Commonwealth Human Rights Initiative where I work and the National Campaign for People's Right to Information (NCPRI) of which I am one of the 7 Co-Convenors.
I am happy for readers to critique of my views. Please do copy them to me. I will read them all and respond where necessary with due respect.