Thanks to Section 2(1)(h) of the Right to Information (RTI) Act, there have time and again been disagreements and debates on whether or not a private entity falls under this law. That is because the Section defines a 'public authority' as one which is a body owned, controlled or substantially financed; or a non-government organisation (NGO) substantially financed, directly or indirectly, by funds provided by the appropriate government. It is always a challenge to prove what is 'substantially' funded.
Recently, in early August 2021, Sunil Kumar Misra, the Odisha state chief information commissioner, declared the Bhubaneshwar-headquartered Kalinga Institute of Industrial Technology (KIIT) a public authority within the ambit of the RTI Act. KIIT is a private educational conglomerate having a deemed university status.
The argument put forth by the RTI activist Pradip Pradhan was that KIIT had taken more than 100 acres of prime land in the heart of Bhubaneswar at a highly subsidised price. The organisation, alleges Mr Pradhan, also took land from the Odisha state government, mortgaged it in a bank and got a Rs2,000 core loan to run multiple educational institutions, including the famous KIIT deemed university and KIMS Hospital.
Pradip Pradhan had sought information way back in 2014 from the public information officer (PIO) of KIIT regarding the appointment of former state and Central government employees in KIIT University and its allied institutions.
Smita Mohanty, the senior PIO of KIIT University, had rejected the application, stating that KIIT is a society registered under the Societies Registration Act and is a self-financed private deemed university. The information commission that Mr Pradhan appealed to heard his case in 2017 and observed that the reply of the PIO was untenable for two reasons. Firstly, private entities, if funded substantially, can come under the RTI Act and secondly, as Mr Pradhan argued, that though KIIT, being registered as a society under the Societies Registration Act, 1860, was a private body, it would be deemed as a public authority under Section 2(h)(ii) of RTI Act. And that’s because KIIT has been funded both directly and indirectly by the government, as evident from various official sources, including the recently released reports of C&AG (comptroller & auditor general).
At the second appeal hearing on 15 February 2017, Rabindra Nath Das, secretary of KIIT, submitted a written memorandum. He stated, “KIIT was not a public authority as per the definition given in Section 2(h) of the RTI Act, 2005 as it had not been established or constituted (a) by or under the Constitution, or (b) by any other law made by Parliament, or (c) by any other law made by the state legislature. It was also neither established nor constituted by any notification issued or any order made by the appropriate government nor substantially financed by funds provided by the appropriate government. On the contrary, KIIT was a society of private persons registered under the Societies Registration Act, 1860 and set up with the objective of establishing and running educational institutions.” The information commissioner asked him to submit all the relevant documents to prove so.
In the same vein, he asked Mr Pradhan to produce before the commission any evidence or data in his possession as would show that KIIT was substantially financed by funds provided by the appropriate government and, therefore, was liable to be regarded as a public authority under Section 2(h).
Mr Pradhan produced documentary proof of how the state government gave around 1,320 acres of land on lease to KIIT.
After hearing both sides, Mr Misra declared on 5 August 2021 in its final 92-page order that KIIT is a public authority under Section 2(h)(d)(ii) of the RTI Act, 2005.
The SCIC observed in his order that:
"We have seen that KIIT got the land from the government and its agencies by making repeated efforts and through determined pursuit. The KIIT had at each point of time pleaded before the government and its agencies for help so that it could build up excellent institutions. The contents of its correspondence with the government and its agencies and the prayers for allotment and regularisation of land show how badly the respondent needed such land. There are also express admissions by the KIIT itself that it would not be able to build the university on such a large scale and of such admirable class but for this land."
"We have referred to the litmus test laid down by the Hon’ble Supreme Court in the Thalappalam case. The test to determine substantial financing is whether or not the non-government organisation could have established itself but for such financing and whether or not it would struggle to exist if such financing is withdrawn. It could not have easily become what it is today – a highly admired university – but for the huge land at cheap rates which it got from the government or its agencies."
"Reference has been already made to the judgement of the Hon’ble Supreme Court in the Thalappalam case wherein it was held that mere grants, subsidies, privileges and exemptions as such could not be treated as public financing. The words `mere’ and `as such’ are important. In the present case, the KIIT not only got land from the government and its agencies but also other grants and exemptions. Therefore, in the present case, the grants and exemptions including tax exemptions cannot be considered as mere'."
"It has clearly emerged that the financing / funding received by the KIIT from the governments and their agencies have proved to the institution to be of solid worth, considerable value, of real significance and of having significant material bearings and effects on the respondent’s establishment growth and continuing existence as an acclaimed multi-disciplinary institution. But for such direct and indirect financing / funding, the respondent would have had to struggle. So would the case be if such financing and funding in the form of land on lease at concessional and subsidised rates of grants and of tax exemptions etc. are to be withdrawn."
"Therefore, the commission is of the considered view that the respondent, M/s KIIT, is a public authority within the meaning of Section 2(h)(d)(ii) of the RTI Act, 2005."
"In the light of the above, the respondent is declared as a public authority as per Section 2(h)(d)(ii) of the RTI Act, 2005; and is directed to furnish the required information to the appellant, as per his application in Form-A, within 30 days from the date of receipt of this order."
It is one of the most outstanding orders of the Odisha information commission, says Mr Pradhan. Will this be a trendsetter or will the KIIT knock the legal doors? Let’s wait and watch.
Section 2(1)(h) of the RTI Act defines “public authority” as follows:
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 the 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 organisation substantially financed, directly or indirectly by funds provided by the appropriate government.
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)