Fw: MP's, MLA's and Members pof Local Self Governments are within the ambit of Public Authority
--- On Thu, 8/14/08, Milap Choraria <milap_choraria@...> wrote:
From: Milap Choraria <milap_choraria@...>
Subject: MP's, MLA's and Members pof Local Self Governments are within the ambit of Public Authority
Cc: whabibullah@..., an.tiwari@..., okejariwal@..., mm.ansari@..., lcsinghi@..., rti-times@...
Date: Thursday, August 14, 2008, 9:26 AM
Before the Hon’ble Central Information Commission
(Through Shri Pankaj K P Shreyaskar, Joint Registrar, Central Information Commission)
With reference to Public Notice of the Central Information Commission, for full Bench hearing, on 2 (two) important issues: (1) whether the information sought by these applicants from public representatives mentioned above, can qualify as information sought under RTI Act, 2005? and (2) whether the public representatives from whom information is asked for, qualify as public authorities, and as such obliged to provide the information under the RTI Act?, I would like to submit my views on the second Issue to be decided by the Hon’ble Commission, i.e. “whether the public representatives such as Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments are qualify as public authorities, and as such obliged to provide the information under the RTI Act?”.
That the Section of the Right to Information Act, 2005 provides following definition of the "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 organization substantially financed, directly or indirectly by funds provided by the appropriate Government;
From the aforesaid definition it is amply clear that Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments are qualify as public authorities once they get elected under the Constitutional and or Statutory provision and vested with them Constitutional and or Statutory ‘authority’ to act as “Public Functionary”;
From the aforesaid definition it is amply clear that Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments are qualify as public authorities since their such ‘authority’ is only vested in them when they get elected by using Government Infrastructures and Machinery, which ruins on the fund from the Consolidated Fund of India;
That Article 12 of the Constitution of defines “the State”, which includes the government and parliament of India and the government and the legislature of the each of the states and all the local or other authorities within the territories of India or under the control of the Government of India, which includes the Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments;
The Section 2 of the Prevention of Corruption Act, 1988 defined the “Public Servant” who is in service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty, or of a local authority or any person who holds an office by virtue of which he is authorized or required to perform any public duty, which includes the public duties assigned to Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments, as the public representatives;
In support of my above mentioned views, I must refer the observation made in Judgment 13/03/2003, by P. Venkatarama Reddi, J., in Writ Petition (civil) Nos. 490 of 2002, 509 of 2002, and 515 of 2002, in the matter of People's Union of Civil Liberties (P.U.C.L.) & Anr. –Vs- Union of India & Anr., in which Hon’ble Supreme Court described the Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments, as the “Public Functionaries”, interalia observing therein that “One more observation at Paragraph 30 to the effect that "the decision making process of a voter would include his right to know about public functionaries who are required to be elected by him" needs explanation. Till a candidate gets elected and enters the House, it would not be appropriate to refer to him as a public functionary. Therefore, the right to know about a public act done by a public functionary to which we find reference in Raj Narain's case (supra) is not the same thing as the right to know about the antecedents of the candidate contesting for the election. Nevertheless, the conclusion reached by the Court that the voter has such a right and that the right falls within the realm of freedom of speech and expression guaranteed by Article 19(1)(a) can be justified on good and substantial grounds. To this aspect, I will advert a little later. Before that, I would like to say that it would have been in the fitness of the things if the case [U.O.I. vs. Association for Democratic Reforms] was referred to the Constitution Bench as per the mandate of Article 145(3) for the reason that a new dimension has been added to the concept of freedom of expression so as to bring within its ambit a new species of right to information. Apparently, no such request was made at the hearing and all parties invited the decision of three Judge Bench. The law has been laid down therein elevating the right to secure information about a contesting candidate to the position of a fundamental right. That decision has been duly taken note of by the Parliament and acted upon by the Election Commission. It has attained finality. The peoples' representatives fill the role of law-makers and custodians of Government.”, and “People look to them for ventilation and redressal of their grievances. They are the focal point of the will and authority of the people at large. The moment they put in papers for contesting the election, they are subjected to public gaze and public scrutiny. The character, strength and weakness of the candidate is widely debated. Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote.”
Whereas the Constitution of India has established democratic Republic; which requires an informed citizenry and transparency of information vital to its functioning and to contain the corruption and to hold Governments and their “Instrumentalities” accountable to the governed, which includes the Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments, as the public representatives.
Therefore, legal position is very clear that Members of Parliament, Members of the State Legislatures and Members of Local Self-Governments, are within the meaning, scope and ambit of definition of the Public Authority, under Section 2 of the Right to Information Act, 2005 and are liable to supply the Information in terms of Right to Information Act, 2005.
Filed on 14th August, 2008
By Milap Choraria
(Movement for Accountable to Public (MAP)
B-5/52, Sector-7, Rohini,
Delhi-110085TRUTH SHALL ALWAYS PREVAIL
Milap Choraria Editor: Suchna Ka Adhikar / RTI TIMES
National Convenor : Movement for Accountability to Public (MAP)