Central Information Commission
Shri P.S. Arora, Shri Shiv Sagar ... vs Bar Council Of India & Bar Council Of ... on 11 January, 2010
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/C/2009/000244 F.No.CIC/AT/C/2009/000245
F.No.CIC/AT/C/2009/000246 F.No.CIC/AT/C/2009/000485
F.No.CIC/AT/C/2009/000508 F.No.CIC/AT/C/2009/000510
F.No.CIC/AT/C/2009/000511 F.No.CIC/AT/C/2009/000559
F.No.CIC/AT/C/2009/000562 & F.No.CIC/AT/A/2009/000764
Total : 10 Cases
Dated, the 11th January, 2010.
Appellant : Shri P.S. Arora
Shri Shiv Sagar Dwivedi
Shri Syed Ejaz Hussain
Shri Mahendra Deo Sharma
Shri Sunil Dutt
Shri S. Mahalingam
Respondents : Bar Council of India
Bar Council of Punjab & Haryana Since the point for consideration in all these 9 complaints and 1 appeal is the same, i.e. the status of the Bar Council of India and the Bar Council of Punjab & Haryana as public authority under Section 2(h) of RTI Act, these petitions were taken up for hearing as a bunch through videoconferencing (VC) on 03.12.2009. Out of 6 appellants / complainants, Shri Mahendra Deo Sharma and Shri Shiv Sagar Dwivedi were present in person while Shri Sunil Dutt was present through his authorized rep. Shri Khem Bhai. Bar Council of India were represented by Shri M.D.Joshi, Acting Secretary and Shri J.R. Sharma, Joint Secretary. Bar Council of Punjab & Haryana were represented by their Counsels, Shri Vijay Chhillar and Shri Sanjeev Kumar.
2. The Bar Council of India as well as the State Bar Council of Punjab & Haryana came up with a plea that they were not public authorities within the meaning of Section 2(h) of the RTI Act. Their main contention is that they received no grant from the Central Government or from the State Government and were, therefore, not financed either directly or indirectly by either. It is their view that Bar Councils ⎯ Central or the State ⎯ were not a body or institution of self- government established by law nor were these substantially financed by the Government. They concede, however, that they were established AT-11012010-02.doc Page 1 of 6 by law but any organization or a body, which claims to be doing anything legitimate, has to be registered under some law or the other. The main source of finance of the Bar Councils was from the Enrolment Fee collected from the applicants and other such fees which it collected. It was pointed out on behalf of the Bar Council of India that Government of India does provide to the Bar Council of India recurring or non-recurring grant for specific purposes. For instance, a grant of Rs.1,88,100/- was released during the financial year 2008-2009 for promotion of Legal Education and related activities vide government letter No.B-13017/1/2007-Admin-III (LA), Ministry of Law & Justice, Department of Legal Affairs dated 04.03.2009. Another one-time grant amounting to Rs.3 crores was also sanctioned for the renovation of Bar Council of India building in the year 2008-2009 vide Government's letter F.No.B-13017/1/2007-Admin-III(LA) dated 26.05.2008. Similarly, another grant of Rs.1,72,98,901/- was released for building work in the year 2008-2009.
3. The Bar Council of India, through its resolution dated 27.06.2009, (resolution no.61/2009) resolved as follows:-
"RESOLVED that the Bar Council of India which is a body established by the Advocates Act, 1961 is not directly or indirectly funded either by the Central Government or the State Government. Therefore, the Bar Councils are not public authorities within the meaning of Section 2(h) of the Right to Information Act, 2005. Therefore, the request for information under the Right to Information Act, 2005 cannot be provided. While replying to letters seeking information under Right to Information Act, 2005 along with the above resolution the following be also added:
The amount of fees sent by you is hereby refunded."
4. In the light of the above, the argument of the Bar Council of India was that although it was constituted under an Act of Parliament, it was not funded directly or indirectly by the government, although occasionally some grant is provided for specific purposes. They cited a decision of the Maharashtra State Information Commission, in which it was held that on the analogy of a Co-operative Society, the Bar Council too was not a public authority.
5. I have carefully considered the arguments of the Bar Council of India and the Bar Council of Punjab and Haryana, especially because AT-11012010-02.doc Page 2 of 6 these have been made by organizations which are so intimately involved with the legal justice system in India as well as legal education. In their ranks, they have some of the country's finest legal minds and the track record which certifies the Bar Council's position as the premier institution in its chosen field.
6. On a perusal of Section 12 of the Advocates Act, 1961, it is found that the Bar Councils established under the Act are not without governmental control inasmuch as they have to maintain such books of accounts and other books in a prescribed manner, their accounts are audited by auditors duly qualified under the Companies Act and at the end of each financial year before the 31st December. Copy of accounts along with a copy of the auditors' report in respect of each Bar Council has invariably to be sent to the Central Government and the same is published in the Gazette of India. Section 12 under Chapter-II of the Advocates Act, l 1961 is reproduced below:
"12. Accounts and audit.
(1) Every Bar Council shall cause to be maintained such books of accounts and other books in such form and in such manner as may be prescribed.
(2) The accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of companies under the Companies Act, 1956 (1 of 1956), at such times and in such manner as may be prescribed.
(3) As soon as may be practicable at the end of each financial year, but not later than the 31st day of December of the year next following, a State Bar Council shall send a copy of its accounts together with a copy of the report of the auditors thereon to the Bar Council of India and shall cause the same to be published in the Official Gazette.
(4) As soon as may be practicable at the end of each financial year, but not later than the 31st day of December of the year next following the Bar Council of India shall send a copy of its accounts together with a copy of the report of the auditors thereon to the Central Government and shall cause the same to be published in the Gazette of India."
The Advocate Bill was passed by both the House of Parliament and it received the assent of the President on 19th May, 1961 and became the AT-11012010-02.doc Page 3 of 6 Advocates Act, 1961. It was passed as a comprehensive measure after repealing the Indian Bar Council Act and all other laws on the subject. In the Statement of Objects and Reasons, it seek to establish an All India Bar Council and a common roll of advocates, and advocate on the common roll having a right to practice in any part of the country and in any Court, including the Supreme Court. It seeks to ensure integration of the bar into a single class of legal practitioners.
7. But frankly, I was little surprised by the contentions which the Bar Councils made in order to keep themselves out of the purview of the RTI Act.
8. It is admitted by them that the Bar Council of India and other State Bar Councils were established under the Advocates Act, 1961 and were "statutory bodies". But, they oppose any proposition that for that reason alone they are a public authority under Section 2(h) of RTI Act. Their plea is that they did not satisfy the requirement of being substantially funded directly or indirectly by the government about which Section 2(h) makes a mention. In a sense, their argument is that unless an entity satisfies all elements of qualifications mentioned in Section 2(h) of the RTI Act, it cannot be defined as a public authority. In other words, even if an entity is established directly through an Act of Parliament, if at the same time, such an entity is not directly or indirectly financed by the Government, it will not qualify to be a public authority under Section 2(h).
9. Section 2(h) of the RTI Act reads as follows:-
'"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 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;' AT-11012010-02.doc Page 4 of 6
10. On a plain reading of the Section it becomes obvious that this Section spells-out the several ways in which an entity qualifies to be public authority. These elements of qualification are mutually exclusive although one or more than one element may be present in a given entity. Even one of these elements is sufficient for an entity to be characterized as public authority.
11. As per the Bar Councils' own argument, it was an Act of Parliament ⎯ i.e. the Advocates Act of 1961 ⎯ which brought them into being. Thus, they come within the definition of 'public authority' under sub-section (b) of Section 2(h) of the RTI Act.
12. The direct or indirect funding about which the Bar Councils have made elaborate arguments is germane to sub-section (d) of Section 2(h), where an entity becomes a public authority through notification issued or order made by an appropriate government. This element of qualification is entirely independent of sub-section (b) of Section 2(h) and presently it is not applicable to the Bar Councils given the circumstances and the nature of their creation. Therefore, the argument that as Bar Councils were not directly or indirectly funded by the government, they were not public authorities, is not square with the requirement of Section 2(h) of the RTI Act.
13. The analogy of a Co-operative Society is also inapplicable in the case of the Bar Councils. The Bar Councils ⎯ like the LIC of India ⎯ were created by an Act of Parliament, which brings them within the scope of Section 2(h)(b) of the RTI Act. The Co-operative Societies do not stand on the same footing as the Bar Councils, or for that reason the LIC of India, as these Societies are registered under the provisions of the Cooperative Societies Act. Similar is the case with the Societies Registration Act, which provides for registration of voluntary organisations called 'societies'. The Advocates Act, 1961 was not an umbrella Act like the Cooperative Societies Act or the Societies Registration Act, but was a specific Act, which brought into being specific organizations, i.e. the Bar Council of India and the respective State Bar Councils. The respondents are entirely right in stating that theirs was a statutory body but wrong in claiming that that was not sufficient condition for their being christened "public authority" under Section 2(h)(b).
14. For the reasons spelt-out in the preceding paragraphs, it is held that the Bar Councils ⎯ Bar Council of India and the State Bar Councils AT-11012010-02.doc Page 5 of 6 ⎯ are public authorities within the meaning of Section 2(h)(b) of the RTI Act.
15. In view of the above, the Bar Councils are directed to take all necessary steps to carry out their duties and responsibilities assigned by the RTI Act. Insofar as the present complaints and appeal are concerned, the Commission directs the respondents (viz. the Bar Council of India and the Bar Council of Punjab and Haryana) to provide the requested information to the appellants / complainants within a period of three weeks from the date of receipt of this order.
16. Complaints and appeal are disposed of accordingly.
17. Copy of this direction be sent to the parties.
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