Access to Public Information, Privacy, Data Protection and Retention
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The Delhi High Court ruled that the Export Promotion Council (ESC) constituted a “public authority” in terms of the Right to Information Act, 2005 and was therefore subject to the provisions of the legislation. The ESC had refused a request for information on a sexual harassment complaint on the grounds that it was a non-governmental organization and did not receive the “substantial” funding from the government that would bring it within the purview of the access to information legislation. The Court held that the ESC received over half of its annual budget from the State, and that – irrespective of what that funding was used for – the ESC was therefore substantially financed by the state and therefore a “public authority”.
This case analysis was contributed by Right2Info.org.
A woman filed a complaint of sexual harassment against two officials of the Electronic and Computer Software Export Promotion Council (the ESC). When she requested information about the committee that was established to investigate the allegation, the ESC argued it was not required to provide her with the information as it did not constitute a “public authority” for the purposes of the Right to Information Act, 2005 (the Act). Section 2(h) of the Act defines “public authority” as any “authority or body or institution of self-government” established by law or by the Constitution or any body (including a non-governmental organization) which is “substantially financed” by the State (para. 3).
The Central Information Commission ordered the ESC to provide the requested information and the ESC then approached the High Court, seeking an order that the Act did not apply to it as it was not a public authority. A single judge ruled that as more that half of the ESC’s annual income was from the government it was substantially financed by the State (para. 3). The matter then went to the Supreme Court to determine whether the ESC constituted a governmental or non-governmental institution. However, in the interim, the ESC appealed to a two-judge bench of the High Court.
Judge Mukul Mudgal delivered the judgment of the two-court bench at the Delhi High Court. The Court had to determine whether the ESC did constitute a “public authority” in terms of the Act.
The ESC argued that it did not constitute a “public authority” as it was a non-governmental organization which was autonomous and was not “substantially financed” by the government (para. 6). In support of its argument, it submitted a communication from the Ministry of Commerce and Industry which had stated that although “Export Promotion Councils” receive no financial assistance from the government, the government may provide assistance for “modernization” and “computerization” (para. 6). The ESC acknowledged that it had received funding for these additional purposes but submitted that as any funds it received from the government were not for administrative expenses it could not be considered to be “substantially” funded by the State (para. 7).
Mudgal acknowledged that the determination of whether the ESC was a governmental institution or not was before the Supreme Court, but proceeded in this case on the basis that the ESC was a non-governmental organization. Accordingly, the sole issue for determination was whether it was included in the definition of public authorities as a non-governmental organization “substantially financed” by the state (para. 5). Mudgal applied a purposive approach, and read section 2(h) with the Preamble of the Act in order to determine what organizations were intended to be covered by the term “public authority”. He said that when read with the Preamble “it is apparent that the intent of the Act is to ensure that there is an informed citizenry and transparency of information which are necessary to prevent corruption and hold the government and its instrumentalities accountable to the governed” (para. 9).
Mudgal assessed the ESC’s argument that the quantum of government funding was less relevant than the purpose for which the funds were given, but held that on a dictionary interpretation of “substantial” the government grant received by the ESC met the threshold notwithstanding that it was not for administrative expenses (para. 12).
Mudgal therefore dismissed the ESC’s appeal, finding that it did constitute a public authority in terms of the Act.
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