CASE ANALYSIS OF

D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY V. DIRECTOR OF PUBLIC

INSTRUCTIONS

(2019) 9 SCC 185

By:-

RITIKA KANWAR

4TH YR., BCOM. LLB. (HONS.)

INSTITUTE OF LAW, NIRMA UNIVERSITY, AHMEDABAD

EMAIL: 17bbl040@nirmauni.ac.in

www.probono-india.in

December 25th, 2020

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 TABLE OF CONTENTS

ABSTRACT....................................................................................................................................3
OVERVIEW....................................................................................................................................3
FACTUAL MATRIX........................................................................................................................3
ISSUES RAISED..............................................................................................................................4
CONTENTIONS...............................................................................................................................4
O APPELLANT........................................................................................................................4
O RESPONDENT.....................................................................................................................4
LEGAL ASPECTS...........................................................................................................................5
o Section 2(h) of 2005 Act: Public Authority......................................................................5
COURT’S OPINION........................................................................................................................5
OUTCOME AND ANALYSIS............................................................................................................6
CONCLUSION AND PATH AHEAD..................................................................................................6
o Suggestion.........................................................................................................................7
REFERENCES.................................................................................................................................7
o Case Laws Referred..........................................................................................................7
o Statutes Referred...............................................................................................................7
o Websites Referred.............................................................................................................7
o Other Materials Referred..................................................................................................8
BRIEF ABOUT AUTHOR.................................................................................................................8

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ABSTRACT

The following is a brief case analysis of the case titled D.A.V. College Trust and Management
Society v. Director of Public Instructions 1 dated September 17, 2019(hereinafter refered to as
‘2019 Case’). The said case majorly revolves around the issue whether the definition of ‘public
authority’ under Section 2 (h) of Right to Information Act, 2005 (hereinafter refered to as ‘2005
Act’) is inclusive of Non- Governmental Organisations (hereinafter refered to as ‘NGOs’). The
division bench, consisting of Justice Deepak Gupta and Justice Aniruddha Bose, of the apex
court interpreted the term ‘substantially financed by the government’ and removed the
ambiguities related with the meaning and ambit of the term ‘public authority’.

Moreover, it has broadened the scope of information that can be accessible by public at large.
The apex court, in this case, has interpreted the 2005 Act with a purposive approach by making
various bodies, organizations and institutions like NGOs accountable to provide information
which and when asked for. Along with widening the scope of the 2005 Act, the apex court, in
this case, has also strived to promote transparency among functioning of public authorities and
their instrumentalities while engaging in public transactions.

Keywords: Non- Governmental Organisation, Pubic Authority, Right to Information Act, 2005,
Section 2(h), Substantially financed by government.

OVERVIEW

o 2005 Act

“With the objective of citizen empowerment, promotion of transparency and accountability, to

check corruption and to enhance people’s participation in democratic process, 2005 Act was
enacted. The roots of RTI can be traced from the case of Mr. Kulwal v. Jaipur Municipal
Corporation2 (1986), wherein the apex court directed that freedom of speech and expression
provided under Article 19 of the Constitution clearly implies Right to Information, as without
information the freedom of speech and expression cannot be fully used by the citizens.

1
DAV College Trust and Management Society v Director of Public Instructions(2019) 9 SCC 185;(2008) 4 SRL 321
(P&H) (DB).
2
Mr. Kulwal v Jaipur Municipal Corporation AIR 1988 Raj 2; 1987 (1) WLN 134.

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Right to information has been seen as the key to strengthening participatory democracy and
ushering in people centered governance. Access to information can empower the poor and the
weaker sections of society to demand and get information about public policies and actions,
thereby leading to their welfare. Right to information opens up government’s records to public
scrutiny, thereby arming citizens with a vital tool to inform them about what the government
does and how effectively, thus making the government more accountable. Improves decision
making by public authority by removing unnecessary secrecy.

However, different types of information are sought which has no public interest and sometimes
can be used to misuse the law and harass the public authorities. RTI is filed as vindictive tool to
harass or pressurize the public authority or to attain publicity. Because of the illiteracy and
unawareness among the majority of population in the country, the RTI cannot be exercised.
Though RTI’s aim is not to create a grievance redressal mechanism, the notices from
Information Commissions often spur the public authorities to redress grievances.”

o 2019 Case

The said case consists of three civil appeals (Civil Appeal Nos. 98449845 of 2013; Civil Appeal
Nos. 98469857 of 2013; and Civil Appeal No. 9860 of 2013), filed by schools/colleges relating
to interpretation of ambit of Section 2 (h) of 2005 Act, clubbed in oneCivil Appeal No. 9828 of
2013. The apex court, in this case, determined that NGOswhich are substantially funded by the
appropriate government will fall within the ambit of ‘public auhtority’ under Section 2(h) of the
said act. The division bench of the apex court interpreted the term ‘substantial finance’ in the
light of provisions of 2005 Act.

FACTUAL MATRIX

 Three civil appeals were filed by D.A.V. College Trust and Management Society, New
Delhi (trust), D.A.V. College, Chandigarh, M.C.M.D.A.V. College, Chandigarh and
D.A.V. Senior Secondary School, Chandigarh.
 These institutions were initially getting grant- in-aid of 95% from Union Territory
(Chandigarh) which later dropped down to 45%. Their grievance majorly revolves around
initiation of proceedings against them by the Director of Public Instructions, Chandigarh

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 while it was claimed that they are not covered within the ambit of Section 2(h)(d) of the
2005 Act.
 The institutions managed by trust were asked to supply the information in relation to
annual fee structure for various Classes/Programmes/Diplomas/Certificate courses/Add-
on courses offered and advertisements/ notices issued by themregarding college
admissions.
 The appellants, herein, being society running schools and colleges, took the stand that
2005 Act is applicable only to government and its instrumentalities as ‘public authority’
and they are not subject to the same. They further urged that as they, on the basis of
documents produced, are not receiving finances from government more than 50%,
therefore, are not being substantially funded by the government.

ISSUES RAISED

I. Whether NGOs substantially financed by the appropriate government would be covered

within the ambit of Section 2(h) of 2005 Act?
II. Whether appellants, in the said case, are substantially financed by the government or not?

CONTENTIONS

O APPELLANT

The appellants contended that Section 2(h) solely covers the institutions and authorities
concerned with self- governance as public authorities. The legislative intent behind the initial
part of the provision was to make the 2005 act applicable only to government and its
instrumentalities which are accountable to it and exclude NGOs running schools and colleges
like them. Moreover, it was also brought forth, in the light of documents, that these institutions
were not being substantially financed by the governments as required under Section 2(h) of the
2005 Act.

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 O RESPONDENT

The counsel on behalf of the respondents argued that the latter part of the said section clearly
includes body owned, controlled or substantially financed and NGOs substantially financed,
directly or indirectly by funds provided by the appropriate Government.

LEGAL ASPECTS

o Section 2(h) of 2005 Act: Public Authority

In accordance with the said section, the definition of ‘public authority’ can be bifurcated into two
parts, namely,

 Means any authority or body or institution of self-government established or constituted:

 by or under the Constitution
 by any other law made by Parliament
 by any other law made by State Legislature
 by notification issued or order made by the appropriate Government
 Includes any:
 body owned, controlled or substantially financed
 NGO substantially financed, directly or indirectly by funds provided by the
appropriate Government

COURT’S OPINION

 While referring to P. Kasilingam v. P.S.G. College of Technology & Ors.3, the court
interpreted the terms ‘means’ and ‘includes’ under Section 2(h) of 2005 Act. The word
‘means’ is strictly suggestive of exact meaning of the definition, i.e., the first four
categories are ‘exhaustive and complete’. The word ‘includes’, however, imparts an
inclusive, broad and liberal meaning to the definition, i.e., the last two categories, when
interpreted broadly, can be said to form sperate categories of public authorities.

3
P Kasilingam v PSG College of Technology & Ors(1995) Supp 2 SCC 348.

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  While referring to Thalappalam Service Cooperative Bank Ltd. And Ors. v. State of Kerela and
Ors.4, the court observed that NGOs and institutions mentioned in last two categories are separate
one and in addition to first four categories.
 Moreover, the court opined that bodies and institutions should be receiving large sum of finance,
need not be more than 50% to fall under the realm of ‘substantially financed’. With regard to
Appellant No. 1, even though the government funding was 45%, 95% of teaching staff salary was
funded by the government, which is a basic component in an educational institute and is vital to
its functioning. Thus, the colleges/schools which are substantially funded by the government are
‘public authority’ within the meaning of Section 2(h) of 2005 Act. However, with regard to other
appellants, the court has asked the High Court to determine whether they are substantially
financed or not, as High Court has not dealt with it earlier.

OUTCOME AND ANALYSIS

 The apex court, while removing the ambiguity related to meaning and scope of the term
‘public authority’ under Section 2 (h) of 2005 Act, held that the same would be inclusive
of NGOs which are substantially financed by the government. There is no strait jacket
formula for determination of ‘substantially financed’ institution, however, the same must
be receiving large amount of funding, which can be both direct and indirect,from the
government.
 Such institutions which are substantially funded or provided with resources for their
institutions by the government are mandatorily bound as ‘public authorities’ to provide
information to the public when asked for as the enactment of 2005 Act is to ensure
transparency in administrative procedures along with fair dealings in public life.
 The court has purposively construed the provision while interpreting Section 2(h) of 2005
Act in the light of purpose and scope of the said Act. The court has focused on broad
objective of the statute, i.e., dispersion of benefits to the masses. As the language of the
provision is unambiguous and clear, the court has interpreted NGOs to fall under in the
ambit of ‘public authority’.
 The apex court, in this case, has opined that bodies and institutions receiving substantial
funding from the government would be covered by the 2005 Act. Moreover, the court has
stated that such ‘substantial finance’ need not exceed 50% and would be inclusive of the
4
Thalappalam Service Cooperative Bank Ltd and Ors v State of Kerela and Ors2013 (16) SCC 82.

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 value of land received as a resource from the appropriate government. The apex court,
moreover, stated that the value of land would be calculated on the date of evaluation of
an institution or organization as a ‘public authority’ under Section 2(h) of 2005 Act.

CONCLUSION AND PATH AHEAD

It can be concluded that the court has applied the rule of purposive interpretation and broadly
construed the definition of ‘public authority’ under Section 2(h) of 2005 Act in order to provide
wide and inclusive meaning to the said term. The term ‘public authority’ has been interpreted
with regard to scope and objective of the 2005 act and in order to promote greater transparency
in public transactions along with expanding its ambit, thus, expanding the scope of access to
information.

o Suggestion

However, it is recommended that the term ‘substantially financed’ must be defined in concrete
manner so as to remove the vagueness and ambiguity inherent in the language of the inclusive
part of the provision. It must be defined as to what proportion of funding by the appropriate
government would be ‘substantial’ for institutions and NGOs to fall within the ambit of ‘public
authority’ under Section 2(h) of 2005 Act. The Supreme Court, while bringing NGOs under the
realm of 2005 Act, could have provided the legal certainty by defining the term ‘substantially
financed’ under the said section.

REFERENCES

 DAV College Trust and Management Society v Director of Public Instructions(2019)

9 SCC 185;(2008) 4 SRL 321 (P&H) (DB).
 Mr. Kulwal v Jaipur Municipal Corporation AIR 1988 Raj 2; 1987 (1) WLN 134.
 P Kasilingam v PSG College of Technology & Ors(1995) Supp 2 SCC 348.
 Thalappalam Service Cooperative Bank Ltd and Ors v State of Kerela and Ors2013
(16) SCC 82.
 Shailesh Gandhi, ‘Bringing NGOs under RTI ambit: Supreme Court judgment could
have ensured legal certainty | Comment’ (Leaflet, September 18, 2019)

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 <https://theleaflet.in/bringing-ngos-under-rti-ambit-supreme-court-judgment-could-
have-ensured-legal-certainty-comment/> accessed on December 21, 2020.
 Ashok Kini, Breaking- NGOs 'Substantially Financed' By Government Amenable to
RTI Act, Holds SC’ (Live Law, September 17, 2019)
<https://www.livelaw.in/top-stories/ngos-substantially-financed-by-government-
amenable-to-rti-act-148168> accessed on December 21, 2020.
 Ananya Dutta, ‘Case Summary: D.A.V. College Trust and Management Society vs.
Director of Public Instructions’ (Law Lex, June 03, 2020) <https://lawlex.org/lex-
pedia/case-summary-d-a-v-college-trust-and-managing-society-ors-vs-director-of-
public-instructions/22190?amp=1>accessed on December 21, 2020.

BRIEF ABOUT AUTHOR

Ritika Kanwar is a 4th year B.Com. LLB(Hons.) student at Institute of Law, Nirma University,
Ahmedabad. She has a keen interest in Criminal Law, Constitutional Law,Family Law and
Human Rights.