In case a company seeks information, does the name of a particular individual come in.
In case a company seeks information, does the name of a particular individual come in.
company is not an individual. There would be an individual (office bearer) who will file RTI application for info on behalf of company. Such application filed by office bearer will be treated as valid under RTI.
Please read threads available here: seretary can ask information - Google Search
Section 3 confers "Right to Information" on all "citizens". A "Citizen" under the Constitution Part II that deals with "citizenship" can only be a natural born person and it does not even by implication include a legal or a juristic person. Section 2(f) of the Citizenship Act defines a person as under:
"person" does not include a company, an association or a body of individuals whether incorporated or not."
The objective of the Right to Information Act is to secure access to information to all citizens in order to promote transparency and accountability. The Act specifically confers the right of information on all "citizens" and not on all "persons". A plain reading of the provisions of the Act read with the provisions of the Part II of the Constitution and the Citizenship Act, 1955 makes it clear that the right of information can not be claimed by a company or by an association or by a body of individuals.
Is it still necessary to determine the question as to whether a company or a corporation can seek information under the RTI Act and can approach this Commission for enforcing their rights? In this context it is pertinent to note that the Right to Information has always been treated as an integral part of the Right to Freedom of Speech guaranteed under Article 19(1) (a) to the Constitution. Be it mentioned that Article 19 also confers the rights to all "citizens" unlike Article 14, which confers "Right to Equality" to all persons. Thus judicial pronouncements in this context can provide suitable guidance as this vexed question has come up before the Superior Courts many a times. In 1955 this issue came up before the Hon’ble Punjab High Court and Justice Harnam Singh. after stating his reasons held as follows:
"I think that a corporation is not a citizen within Article 19, Constitution of India. That being so, the Companies cannot raise the question that the impugned legislation takes away or abridges the rights conferred by Article 19 (1) (f) and (g), Constitution of India."
Justice Soni also observed in that case as follows:
"I am of the view that Article 5 applies to natural born persons and not to artificial persons and a reading of the next Article of Part II in which Article 5 finds a place makes it abundantly clear that what is intended by the word 'citizen' is a natural born person and not an artificial person."
This decision was cited with approval by Justice Upadhyay in Amrita Bazar Patrika Ltd. vs. Board of High School and Intermediate Education, U.P. and Anr. (AIR1955 All 595)
“In State Trading Corporation of India Ltd. vs. Commercial Tax Officer, Vishakapatnam, and Tata Engineering and Locomotive Co. vs. State of Bihar, the Apex Court has held that a Corporation was not a citizen within meaning of Article 19 and, therefore, could not complain of denial of freedoms guaranteed by Article 19 to a citizen. These two decisions are an authority for the proposition that
an incorporated Company being not a citizen cannot complain of violation of fundamental rights guaranteed to citizens under Article 19. In fact in Tata Engineering and Locomotive Co. Ltd. the company wanted the corporate veil to be lifted so as to sustain the maintainability of the petition, filed by the company under Article 32 of the Constitution, by treating it as one filed by the shareholders of the company. The request of the company was turned down on the ground that it was not possible to treat the company as a citizen for the purposes of Article 19. These two
decisions were cited with approval by the Court in Delhi Cloth and General Mills Co, Ltd. vs. Union of India (AIR 1983 SC 937 at Para12.)
However, in R.C. Cooper vs. Union of India (Bank Nationalisation Case) the Hon’ble Supreme Court entertained a petition under Article 32 of the Constitution at the instance of a Director and the Shareholder of a company and granted relief.
The Hon’ble Supreme Court in Bennett Coleman & Co. and Ors. Vs. Union of India (decided in the year 1973) held that a shareholder is entitled to protection of Article 19 and that an individual's right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalization case 1975 has also established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. In Delhi Cloth and General Mills Co. Ltd. (decided on 21.7.1983), the Apex Court observed that the judicial trend is in the direction of holding that in the matter of fundamental freedoms guaranteed by Article 19, the right of shareholder and the company which the shareholders have formed are rather co-extensive and the denial to one of the fundamental freedoms would be denial to the other. Even though, the companies and Corporations have not been held to be a citizen, there are number of cases where the Apex Court has granted relief to the petitioner companies. One of the cases which can be
cited as an example, is the Express Newspaper Case. But in such cases, the petitioners have claimed fundamental rights as shareholders or editors of the Newspapers companies. The same was the situation in Sakal Papers Pvt. Ltd. Case.
A question may arise as to whether the case of a Firm is different from that of a company? In this regard following observations of Chief Justice Chagla in Iron and Hardware (India) Co. v. Firm Sham Lal and Brothers, (AIR 1954 Bom 423)are pertinent:
"In my opinion it is clear that there is no such legal entity as a firm. A firm is merely a Compendious way of describing certain number of persons who carry on business as partners in a particular name, but in law and in the eye of the law the firm really consists of the individual partners who go to constitute that firm. Therefore, the persons before the tribunal are the individual partners of the firm and not a legal entity consisting of the firm."
In Agrawal Trading Corporation and Ors. Vs. The Collector of Customs and Ors.( AIR1972SC648 ) it was argued that , the definition of the word 'person" as given in Section 2(42) of the General Clauses Act 1897 includes any company or association or body of individuals whether incorporated or not. It was contended that this definition does not apply to a firm, which is not a natural person and has no legal existence. The Apex Court upheld the High Court decision that once it is found that there has been a contravention of any of the provisions of the Foreign Exchange Regulation Act read with Sea Customs Act by a firm, the partners of it who are in-charge of its business or are responsible for the conduct of the same, cannot escape liability, unless it is proved by them that the contravention took place without their knowledge or they exercised all due diligence to prevent such contravention.
It is an established fact that all superior Courts have been admitting applications in exercise of their extraordinary jurisdiction from Companies, Societies and Associations under Article 19 and very few petitions have been rejected on the ground that the applicants/ petitioners are corporate bodies or Companies or Associations and, as such, not "Citizens". The Commission also has been receiving a number of such applications from such entities. If the Courts could give relief to such entities, I think, the Commission also should not throw them out on mere technical ground that the applicant /appellant happens to be a legal person and not a citizen. However, the Commission takes into account the following:
1. A company or a corporate body is a legal entity distinct from its share holders and that it is not a citizen. An application or appeal filed by a company before Central Information Commission is generally not maintainable except when :
i) A Share holder or a Manager or a Director is also party or an an additional party. In the latter case such applications, if filed by or on behalf of the company, may be returned back with a direction that it can be resubmitted before the Commission by a Shareholder /Manager /Director.
iii) If the CPIO /Appellate Authority has not taken the plea of citizenship either while denying the information or while denying it partially, the Central Information Commission will not on its own reject the application / appeal merely on the ground that the applicant or the appellant is not a citizen.
What applies in case of a company should also mutatis mutandis apply to the societies, including Cooperative Societies registered under the Societies Registration Act or under any other law providing for constitution and registration of such societies. A society is not a citizen as it also has its distinct legal entity different from its members. Generally an office bearer who submits an application on behalf of such a society is submitting the application/ appeal on behalf of its members and normally it is for common benefit of the members who are citizens.
The application/ appeal from an Association or a Partnership Firm or a Hindu Undivided Family or from some other group of individuals constituting as a body or otherwise is to be accepted and allowed.
Last edited by RAVEENA_O; 07-05-10 at 05:05 PM.
Satyameva Jayate सत्यमेव जयते
I have attached a copy of the decisions on the subject matter of discussion, herewith this post.
CICs have time and again, consistently taken a view point, that beneficial provisions of the RTI Act cannot be denied merely on technical grounds, on the basis of a restricted interpretation of a definition.
But it would always be advisable to avoid applying in the name of an organization.
The reason why the definition has been liberally interpreted is because the only out come of the restricted interpretation would be that the person would have to make a fresh application on technical grounds (thereby only resulting in delay rather than denial of information) and in the end the decision to disclose the information or otherwise would depend upon whether the information is exempt under any of the provisions of the RTI Act.
Excerpt from CCIC Wajahat Habibullah's decision
Complaint Nos.CIC/WB/C/2007/00104 & 105 both dated 30.3.2007
A question may arise as to whether the case of a Firm is different from that of a company? In this regard following observations of Chagla, C.J. in Iron and Hardware (India) Co. v. Firm Sham Lal and Brothers, (AIR 1954 Bom 423) are pertinent:
"In my opinion it is clear that there is no such legal entity as a firm. A firm is merely a compendious way of describing certain number of persons who carry on business as partners in a particular name, but in law and in the eye of the law the firm really consists of the individual partners who go to constitute that firm. Therefore, the persons before the tribunal are the individual partners of the firm and not a legal entity consisting of the firm."
Even if it were conceded that a company or a corporate body is a legal entity distinct from its share holders and it is not in itself a citizen, it is a fact that all superior Courts have been admitting applications in exercise of their extraordinary jurisdiction from Companies, Societies and Associations under Article 19 of the Constitution of which the RTI Act, 2005 is child. Very few petitions have been rejected on the ground that the applicants/ petitioners are corporate bodies or Companies or Associations and, as such, not "Citizens". This Commission also has been receiving sizeable number of such applications from such entities. If the Courts could give relief to such entities, the PIOs also should not throw them out on a mere technical ground that the applicant /appellant happens to be a legal person and not a citizen.
In conclusion we direct that an application/ appeal from an Association or a Partnership Firm or a Hindu Undivided Family or from some other group of individuals constituted as a body or otherwise should be accepted and allowed.Excerpt from CIC Padma Balasubramanium's decision
September 17, 2007
Even though in terms of RTI Act, only a citizen has the right to seek information from a public authority, this Commission has taken a view that directors of companies, partners of firms and office bearers of associations of persons could also seek information on behalf of the companies, firms and associations respectively.Excerpt from CIC Padma Balasubramanium's decision
January 31, 2008
At the outset, it was brought to the notice of CPIO that this Commission has been taking a consistent view in respect of companies, firms and association of firms that directors, partners and office bearers can seek information under the RTI Act in the name of the Company, firm, association of firm respectively even though these entities may not be construed as a citizen in terms of RTI Act. This is with a view to ensure that the beneficial provisions of the RTI Act are not denied on restricted definition. Accordingly, I direct the CPIO to dispose of the application on merits in terms of RTI Act within three weeks.Excerpt from CIC Padma Balasubramanium decision
Appeal No.1586 to 1588/ICPB/2008
F.No.PBA/07/1223 & 1356
In this connection, the Commission has taken a consistent view that in respect of companies/firms/association of firms, directors/partners/office-bearers respectively can seek information under RTI Act and in the name of the Company/firm/association of firms, even though these entities may not be construed as ‘citizen’ in terms of the RTI Act, with a view to ensure that the beneficial provisions of the RTI Act are denied on a restricted definition.
Last edited by Sunil Ahya; 08-05-10 at 05:40 PM.
"A judge is a law student who marks his own examination papers." - H. L. Mencken.
To be practical and to get info without delay, it is advisable that Chairman/President or Mg. Director or even General Manager or Co Secretary can apply in his personal name and mention in note that he is _______ of ________Ltd Co, just to avoid third party problem. Most of PIOs/FAAs are not well versed with RTI and they deny on the ground that applicant is not a person. In such a situation applicant has to visit CIC/SIC incurring delay, expenses etc.
I could help get papers/info by Retired Bank Employees Association in above manner through RTI and based on papers received by its gen secretary, association won a case in Supreme Court benefiting nearly 3000 of its members in gratuity, pension and commutation. Other bank's retired associations are now quoting this judgement to their bank managements and may benefit lakhs of VRS optees of 2000 all over country of all the public sector banks..
Last edited by jps50; 08-05-10 at 07:34 PM.
It takes each of us to make difference for all of us.
Key points emerging from the Preamble of the Right to Information Act 2005 are: Informed citizenry, resulting due to transparent governmental functioning, and demanding accountability of government is a must in a democracy. It is the CITIZENS who, subject to the provisions of the ‘RTI Act, 2005’ have the right to information. Now the question rises. Can a citizen request for information as an office bearer of an association? Paragraph 8 of the ‘Guide for the Public Authorities- Guidelines for the public authorities under the Right to Information Act, 2005’, published by Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, Government of India (O.M.No.1/4/2008-IR dated: 25th April, 2008) states as follows: “The Act gives the right to information only to the citizens of India. It does not make provision for giving information to Corporations, Associations, Companies etc. which are legal entities/persons, but not citizen. However, if an application is made by an employee or office bearer of any Corporation, Association, Company, NGO etc. indicating his name and such employee/office bearer is a citizen of India, information may be supplied to him/her. In such cases, it would be presumed that a citizen has sought information at the address of the Corporation etc.” In a decision on 27.06.2006, the CIC had decided that PIO can decline information under section 3, if the applicant applies as a Managing Director of a company and not a citizen of India. [CIC\OK\A\2006\00121 - 27 June, 2006]. Later, however, on 25.10.2006, CIC decided that even if information is sought by an office bearer of an Association/Union, the same should be treated as valid in terms of the provisions of the RTI Act. [139/ICPB/2006- 25.10.2006].
Why discuss all the theory ?
Look at it practically.
Let us say the PIO rejects the application because it is from a non "citizen".
All he is achieving is delaying his pain for another 30 days (and in the process annoying the applicant further).
Nothing stops any "citizen" to file the same application and either get or not get the information.
Ultimately the information has to be either disclosed or not disclosed (if it is under Sec 8 or 9).
can a Union oraganisation ask information under RTI Act?
Can a union seek for information under RTI?