Is Indian Banks’ Association (IBA) a public authority under the
RTI Act, 2005?
When I opened IBA’s website, I find a Note for Information
that includes the following:
“IBA wishes to clarify in this regard that IBA is:
- - An association of banks
and other entities in the banking ecosystem in India catering to its members;
- - Neither a Governmental
entity nor a Regulatory Authority;
- - Not amenable to Writ
Jurisdiction of Courts; and
- - Not subject to the RTI
Act.”
The definition of ‘public authorities’ under the Right to
Information Act, 2005 (“RTI Act”) has been an extremely contentious issue since
the RTI came into force. The question of “who is a public authority?” is
critical one because it sets the boundaries of the scope of the RTI Act
specifically and the transparency regime in the country, more generally. In the
last many years, a wide variety of entities otherwise considered to be private
entities (such as schools, colleges and sports associations) have been declared
public authorities, and have had to comply with the requirements of the RTI
Act. A perusal of judgments of High Courts and the CIC reveals a diverse and at
times, conflicting jurisprudence regarding the ambit of ‘public authorities’
under the RTI Act.
The term “public authority” is defined in Section 2(h) of
the RTI Act. It states: “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;
The RTI Act thus defines public authorities in two parts.
The first part of the definition (clauses 2(h)(a) to (d) clearly delineate bodies
created by the Constitution of India (Union and state executives, Election
Commission, etc.), by laws made by Parliament and state legislatures (Central
and state universities, regulators such as RBI, SEBI, TRAI etc.), and by
government orders or notifications (Planning Commission) as public authorities.
The second part broadens the scope of the definition of a public authority to
include anybody owned, controlled or substantially financed, and any
non-governmental body substantially financed by the appropriate government.
This second part of the definition has been the subject of much controversy
largely because it leaves the question of what constitutes (a) ownership, (b)
control or/and (c) substantial financing open to interpretation. Unsurprisingly
therefore, most of the case law related to the question of public authorities
is linked to this aspect of the definition.
IBA claims it is a voluntary association of member banks.
It also claims that it is neither a governmental entity nor a regulatory
authority, and it is not amenable to writ jurisdictions of courts and not
subject to the Right to Information Act, 2005.
IBA is financed by its members including public sector
banks. PSBs are its members and as per an estimate the major contribution of
the IBA, more than 70 per cent, comes from PSBs. All along, IBA has been
claiming that it does not come under the RTI Act. So far, the IBA has not
designated any Central Public Information Officer (CPIO).
In the RK Jain versus Indian Banks’ Association case, the
Central Information Commission considered whether the IBA comes under the RTI
Act. The Central Information Commission, in its order dated 13 November 2017
stated: “Taking into account that the IBA performs functions as state agency
and its majority control vests in Government of India-appointed Managing
Directors of public sector banks, the IBA qualifies to be public authority under
the RTI Act, 2005. The Commission, therefore, directed the IBA to designate an
official of the IBA as the CPIO at the earliest as per provisions of section 5
of the RTI Act, 2005 and also to comply with section 4 of the RTI Act, 2005
within four weeks of the receipt of the Commission’s order.
Instead of appointing a CPIO, the IBA filed a writ petition
before the Delhi High Court (WP No 11046/2017), and on 13 December 2017, the High
Court stayed the CIC order. The case is yet to be decided and in the meanwhile
the IBA is taking advantage of High Court stay.
KRS
Courtesy –
- RTI Brief prepared by Anirudh Burman
- Why is Indian Banks' Association not under RTI, S. Kalyanasundaram, The Hindu Business Line
