Central Information Commission
Mrmukesh Jain vs Ministry Of Human Resource Development on 30 May, 2016
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Information Commissioner
CIC/SA/A/2016/000330
CIC/SA/A/2016/000329
Mukesh Jain v. Commissioner of Industries
Important Dates and time taken:
RTI/PIO: 66/17615 (11) 1st Appeal: 2062015 2nd Appeal: 1112016
Hearing: 03052016 Decided on:30 052016
Appellant: Absent
Public Authority: SDM, HQS, Registrar of Societies.
FACTS:
2. The appellant sought information pertaining to registration certificate of CISCE, copies of audited accounts, circular issued by the council, complaints received etc. The CPIO stated that no such information is available. The FAA upheld CPIO decision. The appellant filed second appeal before this Commission.
DECISION:
3. The STATUS of Council for the Indian School Certificate Examinations which conducts the Indian Certificate of Secondary Education (ICSE for Class X & XII) under the RTI Act 2005 is CIC/SA/A/2016/000330 Page 1 still not decided. Information sought from ICSE board under RTI request such as certified copies of evaluated answer sheets, can be shared or not, is the question.
4. Shri OP Kejriwal, Information Commissioner, in appeal no. CIC/OK/A/2006/00303 dt 24.10.08 had held the Council for the Indian School Certificate Examination as a public authority. This order of the Commission had been upheld by the Single Bench of the Delhi High Court vide their order dt 30.5.11 (W.P.(C)8537/2008 and CM 16410/2008). Subsequently on an appeal filed by the ISCE(LPA 617/2011) a Division Bench of the High Court of Delhi vide their judgement delivered on 24.7.12, had observed as follows:
"Earlier the Delhi High Court in Council for Indian School Certificate Examinations vs Ajay Jhuria & Anr on 24 July, 2012, observed that "Council is a registered society under the Societies Registration Act, 1860. There is also a letter on record issued on 24.03.2006 by the Ministry of Human Resource Development which indicates clearly that the Council is not owned or controlled by the Ministry of Human Resource Development. Therefore, according to the learned counsel for the petitioner since the Council is neither owned nor it is substantially financed and, because of the clear statement made in the said communication dated 24.03.2006, nor is it controlled by Central Government, the question of the Council being regarded as public authority does not arise at all".
High court further states that "we set aside the impugned order passed by the learned Single Judge as also by the Central Information Commission. We leave the question of, whether the Council is a public authority or not within the meaning of The Right to Information Act, 2005, open and to be decided in an appropriate case ."
5. Now, the issue is whether CISCE is a public authority like its corresponding CBSE or not? In order to examine this, evaluation of enjoining stem of Section 2 (h) (d) is to be made which is conjoined with the main provision by the words "and includes". Consequently, in relation to the present cases i.e, whether CISCE is a public authority, what requires to be examined is whether each of these entities is, in terms of Section 2 (h) (d) (i), a body owned, controlled, or substantially financed by the appropriate government.
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6. It is in this backdrop, the essence of Section 2 is to be interpreted which begins with the words "in this Act, unless the context otherwise requires...". As the interpretation clause as stated above, enjoins that unless the context requires otherwise, the effort of the Court should be to give effect to the meaning intended by the Parliament as made clear by defining the words employed by it in the enactment "unless the context otherwise requires". Also, it was well observed in R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335 , that the Court should examine every word of a statute in its context and to use context in its widest sense. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd.(1987) 1 SCC 424, Chinnappa Reddy, J. observed " A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." So, we can suitably construe that intent of legislation was to bring more transparency by bringing more and more entities under ambit of RTI Act if they tend to be in public interest. In CIT v. Taj Mahal Hotel (1971) 3 SCC 550 the Supreme Court held:
"The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used, those words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include."
7. Now the question is whether CISCE is controlled by the appropriate government? To answer this we have to adopt a contextual interpretation of word control. In the context of the RTI Act within the meaning of Section 2 (h) (d) (i) of the RTI Act, it will be noticed that unlike in all the decisions concerning the interpretation of the word state under Article 12 of Constitution of CIC/SA/A/2016/000330 Page 3 India, the test evolved is that of "deep and pervasive" control whereas in the context of the RTI Act there are no such qualifying words like "deep" and "pervasive" used for the word "controlled.". The Shorter Oxford English Dictionary (5th Edn.) defines it as "the act of power of directing or regulating; command, regulating influence" or "a means of restraining or regulating; a check; a measure adopted to regulate prices, consumption of goods etc." In both senses therefore the key word is "influence" and not necessarily "domination". Since Section 2 (h) (d)
(i) RTI Act uses the word "controlled" without any criterion as to the degree of control, it is not sufficient to show that there is "no deep or pervasive control" over these entities by the appropriate Government. What does not make an entity a public authority for the purposes of the RTI Act would be tenable if it is shown that there was or is no control or there is unlikely to be any control whatsoever over their affairs by the appropriate government if they want to escape the definition of public authority under the RTI Act. Thus, The Delhi High Court in W.P. (C) 6129/2007 has held that the Krishak Bharti Cooperative Ltd. ("KRIBHCO") a society registered under the MultiState Co operative Societies Act, 2002 (hereinafter, the "MSCS Act"
to be a "public authority" for the purpose of the RTI Act because certain devices laid down in the MSCS Act itself makes KRIBHCO amenable to the control of the Government authorities".
8. The Commission found that the Registrar of Societies in Delhi considers that he doesn't have any power to collect the information from the society, except annual list of managing body under section 4 of societies Registration Act, 1860. This substantiates that the Registrar of Society can exercise control over CISCE, a society registered under Society Registration Act, 1860 by collecting the information from the society regarding its annual list of managing body under section 4 of societies Registration Act, 1860. Thus, the question is not whether there is "deep" and "pervasive" control over CISCE by the appropriate government, but whether there is the absence of any "control" over it by the appropriate government. It is also pertinent to note the second sentence of the above section 4 of societies Registration Act, 1860 which provides for right to information to any person to require a copy of extract of any document or part of any document to be certified by the Registrar on payment of requisite fees.
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9. This means the Registrar, through appropriate government can exercise control howsoever less over such bodies like CISCE, as he can certify any paper, and such paper can be sought by any person. Thus, registrar can collect the information from the society and provide the same to the appellant. The public authority should understand that the Societies Registration Act gave right to information to any person in 1860 itself but owing to the closed mindset of the officers including the one who represented today, nobody is ready to collect necessary documents from the society. Except inactivity, there is no other reason for this kind of abdication of responsibility of the Registrar.
10. Various states have brought in state amendments expanding the power of registrar to secure more information from the societies, to impose penalties, to prohibit certain names in the title, to insist upon auditing of balance sheets, to insist on filing the changes in managing body and rules, to insist many such documents to be filed with the registrar etc. Surprisingly, the Delhi government did not amend this enactment to enhance its powers. Because of this, some societies are totally acting independent without being under regulatory control of either state or central governments.
11. In this case, the CISCE claims that it is not under regulatory control of any government. Though they are running around two thousand schools, charging huge fees, they are totally not accountable to anybody. This will certainly lead to collection of high fees from the students, arbitrary spending of the funds and despotic governance of the institution without answerability. Hence, the Commission recommends Mr. Manish Sisodia, Dy. Chief Minister & Minister for Revenue, GNCTD to consider amending the Societies Registration Act, 1860 to regulate the societies which are running schools and other institutions without any answerability or accountability.
12. With the new Right to Education Act (RTE), comes an exciting opportunity to change the way private unaided schools are regulated and gain recognition in India. The role of the private unaided sector in India is crucial for achieving "Education for All". The RTE Act provides an opportunity for state governments to explore ways in which to assure even better quality from CIC/SA/A/2016/000330 Page 5 private unaided schools. It is now generally recognized that private unaided schools are contributing significantly to India achieving the target of Education for All. With the introduction of the RTE comes an opportunity to stimulating the efficiency and effectiveness of private unaided schools through a new regulatory model.
13. The Council for the Indian School Certificate Examinations (abbreviated as CISCE) is a national level, private, Board of School education in India that conducts the Indian Certificate of Secondary Education and the Indian School Certificate examinations for Class X and Class XII respectively.
CISCE was set up in 1956, is a private, nongovernmental board of school education in India. The Council conducts the Indian Certificate of Secondary Education (ICSE), the Indian School Certificate (ISC) and the Certificate of Vocational Education, Examinations. The CISCE website states about itself:
"The Council has been so constituted as to secure suitable representation of:
Government of India, State Governments/Union Territories in which there are Schools affiliated to the Council, the InterState Board for AngloIndian Education, the Association of Indian Universities, the Association of Heads of AngloIndian Schools, the Indian Public Schools' Conference, the Association of Schools for the ISC Examination and members coopted by the Executive Committee of the Council."
14. In 1952, an All India Certificate Examinations Conference was held under the Chairmanship of Maulana Abul Kalam Azad, Minister for Education. The main purpose of the Conference was to consider the replacement of the overseas Cambridge School Certificate Examination by an All India Examination. This set the agenda for the establishment of the Council. In October 1956 at the meeting of the InterState Board for AngloIndian Education, a proposal was adopted for the setting up of an Indian Council to administer the University of Cambridge, Local Examinations Syndicate's Examination in India and, to advise the Syndicate on the best way to adapt its examination to the needs of the country. The inaugural meeting of the Council was held on 3rd November, 1958. In December 1967, the Council was registered as a Society under the Societies Registration Act, 1860.In 1973, the Council was listed in the Delhi School Education Act 1973, as a body conducting "public" examinations.
CIC/SA/A/2016/000330 Page 6 15. THE COUNCIL'S MISSION
The Council for the Indian School Certificate Examinations is committed to serving the nation's children, through high quality educational endeavours, empowering them to contribute towards a humane, just and pluralistic society, promoting introspective living, by creating exciting learning opportunities, with a commitment to excellence. In a major advance to transparency in private schools, the Commission in its earlier order has ruled that private schools governed by laws like the Delhi Education Act will also be governed by provisions of the Right to Information Act, 2005. In the decision, Ms. Sadhana Dixit Vs. Directorate of Education, the Commission ruled that private schools cannot deny to provide information on service records and salaries. The Appellant an exemployee of Jindal Public School under the Directorate of Education hadfiled an RTI seeking a certified copy of service book, copies of her appointment letter issued by Jindal Public School and staff statements of all the employees. The Directorate of Education provided all the information available with them but the school did not share any of the information asked by the appellant on the grounds that the RTI Act did not apply to a private institution. the school was directed to provide her with the information requisitioned under Section 2(f) of the RTI Act because the school "has a duty under sections 4 and 8 of the Delhi Education Act 1973, to abide by the regulatory conditions of service, payment of salaries as prescribed, etc for which the school has to maintain the records, which provide an inherent and implied right to information to their employees". It was further held :
"Under Right to Education Act 2009 also, the recognized school is under an obligation to appoint eligible teachers and provide them with prescribed wages. This also reveals that it has given inherent Right to Information to the teachers from their employers."
16. Private schools' being a private entity is not covered under RTI Act directly, but as per the Central Information Commission any information with the government relating to the regulation and management of the private schools are covered under RTI Act. Hence it means that a citizen cannot directly file an RTI application to private school but can file an application for CIC/SA/A/2016/000330 Page 7 information to the government authority under which it is registered or to the government department which controls it.
17. In the case of Khanapuram Gandaiah v. Administrative Officer & Ors, AIR 615 SC, 2010 where the apex court stated that as per Sec.6 of the RTI Act only those information relating to the private entity could be attained which can be accessed by the Public Authority under any other law. Thus, schools which are covered under the Delhi Education Act, 1973 and Right to Education Act, 2009, will be covered under RTI irrespective of it being a private entity or public entity. Any information which has to be sought from any other private schools which has not been registered under Delhi Education Act and Right to Education Act can be availed through the through government entity or the public authority under which the Private entity has been registered. For which RTI application has to be filed to that entity and only those information could be gathered which is available with the government entity. The information gathered through those government authorities will be covered under Sec.2 (f) of the Act, which deals with information relating to private body which has been gathered through public authority through different laws regulating those private authorities.
18. Although RTI does not apply to private schools directly at the same time it does not exempt them completely. It indirectly controls private school. The reason behind it is that the schools are the foundation of society hence it is necessary to have a transparency despite of being private school or public school. RTI has been enacted for the benefit of people and hence it has to be flexible to bring into its ambit all functions whether private or public to ensure welfare of people and in public interest.
19. As the activities of the functionaries of the private education sector, where a larger number of urban children partake education by paying exorbitantly high fees) have immense and pervasive influence on children, the future of any nation, and accordingly the documents containing decisions taken by the controlling authorities have considerable implications for promoting quality education system and the wellbeing of the entire society which, therefore, CIC/SA/A/2016/000330 Page 8 cannot be claimed as privileged/secret information by any school which performs a governmental function.
20. All the aided or unaided schools are performing governmental functions to promote high quality of relevant education. An official of the GNCT of Delhi is nominated by the Directorate of Education as a member of the Management Committee of all the schools. The nominated member of the Directorate of Education is therefore the regulator and custodian documents covering governance of private unaided schools under section 5(4) of the RTI Act. And, there is no reason why such documents, reflecting the aspects of governance of the school, should not be put in public domain. The Government has the control on the functioning of the schools and, therefore, it has access to the information asked for and, so has a citizen.
21. Not only the land allotted to private educational institutes is provided at subsidized rates, but also the fees paid by the students/parents enjoy incometax concession. There is thus some element of indirect Government funding in the activities of even private and unaided schools. The Statement of Objects and Reasons of the RTI Act indicates that in order to ensure greater and more effective access to information, provisions to ensure maximum disclosure and minimum exemptions, consistent with the constitutional provisions, and effective mechanism for access to information and disclosures by authorities were adopted. The preamble to the RTI Act indicates that it is a statute to provide for "setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority".
22. The contention of SDM, HQS, Registrar of Societies that the information sought by the appellant pertaining to registration certificate of CISCE, copies of audited accounts, circular issued by the council, complaints received etc. are not under his custody and he cannot acquire them is not acceptable, as Section 22 of the RTI Act, 2005 has an overriding effect on CIC/SA/A/2016/000330 Page 9 all such provisions that come in the way of promotion of transparency in functioning of the schools, the activities of which are governmental in nature.
23. Commission directs the Registrar of Societies to collect the information, not exempted under Section 8, of RTI Act, from the concerned society and provide the same to the appellant within one month from date of receipt of this order. Commission also directs, Director/President of CISCE to publish the information sought by the appellant on its official website in the interest of transparency. Commission also directs the Director/President of CISCE to explain why it should not be considered as a public authority under RTI Act, why it should not be made liable to provide information to the Registrar Of Societies so that it can be accessed by citizen under section 2(f) of RTI Act and why it should not be directed to comply with section 4(1)(b) of RTI Act within one month from the receipt of this order.
(M. Sridhar Acharyulu) Information Commissioner Authenticated true copy (Babu Lal) Deputy Registrar Copy of the order handed over to the parties during hearing Addresses of the parties:
1. The CPIO under the RTI Act, , RTI Cell, Govt of Delhi CIC/SA/A/2016/000330 Page 10 Commissioner of Industries Udyog Sadan Plot No.419, FIE Patpar Ganj Industrial Area, Delhi110092
2. Shri Mukesh Jain 1/12, Sahitya Kunj, MG Road Agra282002 CIC/SA/A/2016/000330 Page 11