Orissa Notification on NGOs as Public Authorities under RTI Act- Absurd &
Illegal !
(Download Oriya article at http://www.box.net/shared/t8sot3mqi9 )
On 28th Aug. last, the sudden notification by the Government of Orissa in the
newspapers that a section of NGOs need to appoint PIOs, APIOs & 1st Appellate
Officers in compliance to RTI Act must have surprised many. Not necessarily
because it portended additional and exacting load on their portfolio and
resources, but surely because it gave rise to so many perplexing questions the
answer to which still eludes them. The said notification, though premised on
Section 2(h)(d-ii) of the Act, has conspicuously skipped the urgency of
defining and explicating such critical expressions found therein as
‘substantially financed’ and ‘directly or indirectly by funds provided by the
appropriate Government’, as a result of which the whole gamut of NGOs (be they
Societies, Companies, Trusts, Political Parties, Trade Unions, Officers’ Clubs,
Professional Associations of CAs, lawyers, physicians, and the like) are simply
left off in a quandary as to who shall
be considered as ‘Public Authorities’ under the Act, obligated to discharge
the same duties as the Governmental Public Authorities do. Again, in absence of
any such kindred notification by the Central Government, the NGOs operating in
Orissa but financed/funded by the Central Government got obviously confused as
to whether they shall too be booked under the recent Notification made by the
Government of Orissa. This question assumes added significance in view of their
anxiety to know which Rules they shall have to abide by, since the RTI Rules of
the Centre are much simpler, user-friendly and inexpensive (no form, no citizen
identity proof, no treasury challan, no court fee stamps, no appeal fee and no
fee for BPL families etc.) than that of Orissa.
It is further disconcerting to find that while the then Chief Secretary
Dr.Subas Pani had promised to put in place suitable guidelines before asking
the NGOs to appoint PIOs, APIOs and 1st Appellate Officers under the Act (vide
Para 2(viii) of Proceedings of Core Committee Meeting held at Secretariat on
22.08.2005 http://www.orissa.gov.in/i&pr/corecom.htm), the outgoing Chief
Secretary Sri Ajit Kumar Tripathy, just 3 days before his retirement, brought
out the above notification in a hot hurry, that too in the manner of an
administrative fiat, without bothering at all to comply with his predecessor’s
spacious commitment in this regard. Besides the present notification for all
its pretence to serve as an obligatory instrumentality under the RTI Act has
not been framed, as it should have been, following the pre-publication of its
draft in the media for inviting views on and objections thereto from among the
members of the public prior to its
finalization, a time-worn mandate of Section-23 of General Clauses Act 1897
(http://www.indianrailways.gov.in/RPF/Files/law/BareActs/Generalclausact.doc#a23).
Let it parenthetically be noted that the notification of Orissa RTI Rules 2005
(http://orissagov.nic.in/rti/index.htm) had also followed such an illegal
course, on account of which not only Right to Food Campaign, Orissa but also a
veteran national level RTI protagonist Mrs.Aruna Roy in her Memorandum to
Orissa CM dated 23rd Dec. 2005
(http://www.orissarti.com/articles/WhyORulesunjust/arunamemo.htm) had
brandished the above dispensation illegal besides being anti-people.
Conceding that there is a glaring vacuity in the RTI Act surrounding the
meaning of such critical expression as ‘substantially financed directly or
indirectly’, the Central Information Commission has passed so far a fair number
of decisions on the issue of NGOs to act as public authorities, taking the cue
from Section 14(1&2) of CAG Act 1971
(http://cag.gov.in/html/about_legal_dpc.htm#ch3). However, the said decisions
of CIC, if scanned closely and in perspective, don’t offer us any standard set
of consistent or uniform criteria, capable of being applied objectively across
the entire multi-verse NGO spectrum of our country. For all the honest and
laborious efforts of the CIC in the past to help evolve a standard, all-weather
set of norms to determine the public authority status of an NGO, what emerges
as its prime tool oft-used so far is to decide case by case and each case on
the merit germane to it. It is a plain truth there exists no consensus
at national level on this nagging issue. While Goa Information Commission went
to the extent of saying that there appeared no need for a separate notification
to be made declaring NGOs as public authorities under Section 2(h)(d-II) of the
Act (http://www.rti.org.in/Documents/NGOs%20under%20the%20RTI%20Act.pdf), the
Karnataka Government took a diametrically opposite stance by declaring, for
example, all the Cooperative Societies as public authorities under RTI Act. The
latter notification was, however, held objectionable by the Karnataka
Information Commission following an appeal by an affected society
(http://www.kic.gov.in/nov/06-11-06/KIC%20232%20APL%202006.pdf). The Gujurat
High Court did also issue a stay against the State Government’s order declaring
all Cooperative Societies obligated to abide by the provisions of RTI Act
(http://www.kic.gov.in/nov/06-11-06/KIC%20232%20APL%202006.pdf). While 2nd
Administrative Reforms Commission, keeping in line
with CIC’s direction has entrusted the responsibility of identifying public
authorities among the NGOs to the concerned Ministries & Departments of the
Government (http://arc.gov.in/rtifinalreport.pdf), it however recommended a
lower percentage (50% of the total yearly expenditure of an NGO contributed by
the Government) but a higher amount (Rupees 1 received by an NGO in a year from
the Government) than the CAG stipulated and CIC upheld norms on respective
heads (as much as 75% and only Rs.25 lakh) as minimum eligibility criteria for
declaring NGOs as public authorities under RTI Act.
At a moment when the whole nation is debating aloud the thorny, but all too
inescapable issue of hammering out a reliable mechanism for notifying NGOs as
public authorities, the diktat like notification by Government of Orissa as
made on 28th Aug. last is not only illegal in view of its abject failure to
comply with the pre-publication requirements of General Clauses Act 1897, but
also pathetically out of joint with the heuristic ethos that marks the
mainstream RTI discourse around this issue across the whole country.
Under the circumstances, the 4-page Oriya article entitled ‘Government of
Orissa’s Notification on NGOs as Public Authorities under RTI Act – Absurd and
Illegitimate’ suggest a 3-point course of action as mentioned below:
- Ensuring that the Governmental public authorities at every level be
beefed up to provide information to the applicant citizens on all manner of
private bodies whether funded by Govt or not, in compliance to Section 2(f) of
the RTI Act;
- Withdrawal of absurd and illegitimate notification by Government of
Orissa dated 28.8.2009 on NGOs as public authorities under RTI Act; and
- The Government of Orissa to hold extensive consultation with all
manner of private bodies or NGOs (Societies, Companies, Political Parties,
Trade Unions, SHGs, Clubs, Literary and Cultural Associations etc.) to evolve a
consensus on how the NGOs intended by law can serve as Public Authorities under
the RTI Act.
Chitta Behera, dated 4th Sept. 2009
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