Applicability of RTI Act on Private Universities

At the center of every democratic country lies an individual’s fundamental right to speech and right to information duly protected by the constitution and the judiciary. The Right to Information Act (hereinafter referred to as “RTI Act”) is one such act enacted by the Parliament in 2005 with the objective of strengthening democracy and securing the citizens right to information from organizations under the control of public authorities so as to ensure transparency and accountability in the functioning of public bodies. Through the RTI Act, a citizen can readily access information concerning public authorities upon a request made by the individual subsequent to which the bodies are legally obliged to respond within the time stipulated by the statute. The RTI Act has, by far, led to greater transparency in the functioning of the public bodies with improved oversight.

While the RTI Act primarily applies to public authorities defined under Section 2(h) of the RTI Act, including bodies that are owned, controlled or substantially financed by the Government, like public sector undertakings and government departments; however, its applicability to private institutions such as private universities remains an unsettled aspect of law with the judiciary not setting a decisive precedent on this aspect. The RTI Act defines public authorities as bodies that receive substantial financial support from the government and private universities unless they fall within the scope of the definition do not directly fall under the purview of the RTI Act. This article aims to shed light on the existing scenario of the applicability of RTI Act on private universities. 

WHETHER PRIVATE UNIVERSITIES FALL UNDER THE AMBIT OF “PUBLIC AUTHORITY”?

The question of whether private universities come under the ambit of “public authority” or not is a complex issue accompanied by a lot of debate and litigation surrounding it. The section defines public authority as “any authority or body or institution of self-government established or constituted; 

1. by or under the Constitution; 
2. by any other law made by Parliament; 
3. by any other law made by State Legislature; 
4. by notification issued or order made by the appropriate Government, and includes any— 
5. body owned, controlled or substantially financed; 
6. non-Government organisation substantially financed”

A bare perusal of the aforementioned definition does not hint towards the private universities being considered a “public authority.” A private university, similar to a private institution, is established and operated by private entities separately with no involvement or control of the government whatsoever. The primary point that arises upon considering the section is that private universities are excluded from the RTI Act owing to the fact that the universities are neither controlled nor financed by the government, which contradicts the rule laid down in the section. The very basic essential for an authority to be regarded a public authority is that it must be “substantially financed” or “owned and controlled” by the government. But what constitutes “substantially financed” remained unanswered for a very long time until recently when the Supreme Court in the case of D.A.V. College Trust and Management Society and Others v. Director of Public Instructions and Others  held that the word substantially financed varies from case to case. However, the apex court developed a principle that can be used to ascertain whether a body is funded substantially. It held that “another aspect for determining substantial finance is whether the body, authority or NGO can carry on its activities effectively without getting finance from the Government. If its functioning is dependent on the finances of the government, then there can be no doubt that it has to be termed substantially financed.” 

As specified before, the basic cue for determining the applicability of RTI Act for a private institution is determining whether they are essentially controlled, owned or financed by the government and if the response is in positive for the same, then the body falls under the ambit of public authority and are obligated towards the public to disburse the information being sought by the citizens. More often than not, private universities do not fall under the ambit of public authority as they essentially manage and fund their organization with little to no assistance from the government and hence do not fall under the wide ambit of “public authority.”

However, this does not give private universities a blanket immunity to not be accountable for their activities to the public at large. In a field like law, where a loophole exists for every case, a similar one exists here as well as there exists an indirect mechanism for holding private universities accountable. A private university can be held accountable through regulatory authorities such as the University Grant Commission (UGC) and All India Council of Technical Education, which are recognized as public authorities under the RTI Act. Because both public and private universities are regulated and overseen by these regulatory bodies, all applicable information on compliance, accreditation, and funding should, in theory, be forthcoming through RTI requests to the regulatory body in question. These indirect access mechanisms grant some sort of access to stakeholders regarding the internal  functioning of private universities, although the details of the internal workings are not mentioned therein.

Although private universities by and large do not fall under the ambit of “public authorities” under the RTI Act, there are instances wherein private universities are obliged to disclose information to the public at large to ensure transparency and accountability in the functioning of the public authorities. 

JUDICIAL DELIBERATIONS

In a very landmark decision of D.A.V. College Trust and Management Society and Others v. Director of Public Instructions and Others, the apex court had to decide whether colleges and schools run by a trust that received substantial funding be considered a public authority under the RTI Act. The court, in this case ruled it to be a public authority as the government contributed to more than 40% of the expenses of the trust, thereby falling under the ambit of “substantially financed.” The court also emphasized that the substantial funding, even if it does not constitute to the majority of the amount could still considered as a public authority depending on the facts of the case. The court held that, “Expression "substantial" means a large portion. It does not necessarily have to mean a major portion or more than 50%. No hard-and-fast rule can be laid down in this regard. Substantial financing can be both direct or indirect. To give an example, if a land in a city is given free of cost or on heavy discount to hospitals, educational institutions or such other body, this in itself could also be substantial financing. The very establishment of such an institution, if it is dependent on the largesse of the State in getting the land at a cheap price, would mean that it is substantially financed.”

In another judgment of Thalappalam Service Cooperative Bank Ltd. and Ors. V. State of Kerala and Ors the apex court considered whether cooperative societies which have been registered under state cooperative societies acts are public authorities within the meaning of the RTI Act. The Supreme Court held that these are not public authorities unless the Government substantially finances them. It, therefore, pointed out that substantial funding is an important consideration in deciding whether an organisation can be characterized as a public authority or not. It also emphasized on the fact that mere regulatory control or indirect control by the government is not sufficient for it to be considered as a public authority.

CONCLUSION

In conclusion, the applicability of the RTI Act on private universities remains a largely vast and complex issue dependent on the substantial funding and control of the government over these institutions. While a bare perusal of the act does not hint towards the private universities falling under the ambit of the RTI Act, there remain exceptions where the substantial funding or control or ownership can bring these institutions under the ambit of “public authority.” Judicial interpretations in cases such as D.A.V College Trust case, have asserted that the substantial funding also need not be a majority but must be significant enough the impact the functioning of the institution. Moreover, although private universities are exempt from disclosing information under the RTI Act, the indirect mechanisms through regulatory bodies ensures transparency in the public bodies. Thus, although a private university at large is not obliged to disclose information under the RTI Act, it can voluntarily choose to disclose information upon request made by the citizens. This balance will heighten ongoing debates over the need for greater transparency in the private education sector while maintaining its independent status.