Doubts are frequently raised, whether the Right to Information Act confers right to seek information to a legal or juristic person. The term ‘person’ is not specifically defined in the Act. A concomitant issue for consideration is whether a juristic person can invoke fundamental rights considering Right to Information as a right in the nature of fundamental right. Before embarking upon these issues, it is necessary to revisit the relevant provisions of law.
Section-3 of the RTI Act confers the Right to Information to all CITIZENS. Section-6(1) further provides that a ‘person’ who desires to obtain information under the Act shall make a request in writing.
Section-5(1) provides that every public authority shall designate as many officers as the Central or State Public Information Officers in all administrative units or offices under it to provide information to persons requesting for the information under this Act.
Section-5(3) provides that every Central or State Public Information Officer shall deal with requests from persons seeking information and render reasonable assistance to the persons seeking such information.
Section-18(1) provides that Subject to the provisions of this Act, it shall be the duty of the Central or State Information Commission to receive and inquire into a complaint from any person.
Section 19(1) provides that any person, who does not receive a decision within the time specified or aggrieved by a decision of CPIO or SPIO, as the case may, prefer an appeal.
The legislature in its wisdom has used the word ‘person’ to denote an applicant, appellant or complainant in various Sections viz. 5(1), 6(1), 6(2) 7(1), 7(3), 7(4), 7(5), 7(6), 7(8), 8(3), 18(1), 19(1) and 26(2).
A conjunctive reading of all these Sections, especially section-3 with 6(1), would make it clear that a Citizen as a person can seek public information.
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(1)(f) of the Citizenship Act defines that a "person" does not include a company, an association or a body of individuals whether incorporated or not."
“Person” has been defined in Section 3(42) of the General Clauses Act, 1897, to include any company or association or body of individuals, whether incorporated or not.
The first issue is whether a juristic person can seek information under the Right to Information Act?
The issue whether the word “person’ mentioned in Rule-1 of Order XXXIII of CPC refers only to a natural person or includes also other juridical persons came up before the Apex Court in Union Bank of India Vs. Khader International Construction & Ors (AIR 2001 SC 2277), in which the Apex Court held that a public limited company which is otherwise entitled to maintain a suit as a legal person can very well maintain an application under Order XXXIII Rule-1 of CPC. The Apex Court made reference to serious of decisions on the subject and held that a survey of various decisions should show that preponderance of the view is that the word “person” referred to in Order XXXIII includes a juristic person also. The Apex Court quoted with approval an earliest decision of Division Bench of the Madras High Court in Perumal Koundan Vs. Tirumalrayapuram Jananukoola Dhanasekhara Sanka Nidhi Ltd (AIR 1918 Madras 362) in which case the company registered under the Companies Act went into liquidation and the appointed official liquidator applied to file a suit on behalf of the company in forma pauperis against the petitioner therein and the petitioners raised objections that the company could not file a suit in forma pauperis. Repelling this contention the Division Bench held:
In the same case, the Hon'ble Court has come to a conclusion that the word “person’ is to be given it’s meaning in the context in which it is used. The Hon'ble Apex Court has cited the following observations of Lord Selborne in Pharmaceutical Society Vs. London and Provincial Supply Association (6 Appeal Cases 857):
It is thus a settled position of law that the term ‘person’ referred to in General Clauses Act, 1897 include natural person and juristic persons. However, the Right to Information Act confers the right not to all ‘persons’ but only on ‘citizens’ and there is no ambiguity about the definition of the term ‘citizen’. A juristic person can be a “person” but he cannot be a “citizen”. Every citizen is a person but the vice versa of the same is not true. An artificial or juristic person cannot be a citizen.
The issue whether corporation or juridical person can be recognized as citizen has been adjudicated in detail by the Hon'ble Supreme Court in Bennett Coleman & Co. and ors. Vs Union of India ( AIR 1973 SC 106 ) by revisiting its earlier decisions.
Another issue for consideration is whether a juristic person can enforce fundamental rights?
This issue has come up before the Apex Court in the case of State Trading Corporation of India Limited Vs. Commercial Tax Officer, Visakhapatnam [(1994) 4 SCR 99 ] and the Hon'ble Apex Court held that the State Trading Corporation is not a citizen which necessarily means that the Fundamental Rights guaranteed by Article 19 which can be claimed only by citizens cannot be claimed by such a corporation. In the case of Tata Engineering & Locomotive Co Vs. State of Bihar (AIR 1965 SC 40) the Apex Court held that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of the Apex Court was that the word “citizen” in Part-II and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke Fundamental Rights. The corporate veil it was said could be lifted where the company is charged with trading with the enemy or perpetrating fraud with Revenue authorities. In the case of Charanjit Lal Chaudhuri Vs. Union of India and ors [(1950) SCR 869] the majority view was that an incorporated company can come up to this court for enforcement of fundamental rights.
In the case of Express News Papers and Another Vs Union of India and others [(1959) SCR 12], Sakal Papers (P) Ltd and Ors Vs. Union of India (AIR 1962 SC 305) relief has been granted to the petitioners claiming fundamental rights as shareholders or editors of newspaper companies. In both these cases, there was no plea about the maintainability of the writ petition on the ground that one of the petitioners happened to be a company.
In the case of Divisional Forest Officer Vs. Bishwanath Tea Co. Ltd, the Apex Court held that: ….. the High Court overlooked the settled legal position that a juristic person such as a Corporation is not entitled to any of the freedoms guaranteed by Article 19. The respondent was the sole petitioner in the High Court. It is a company incorporated under the Companies Act. The fundamental right claimed under Article 19(1)(g) is to practice any profession or carry on any occupation, trade or business. The respondent (company) contended that it had a right to carry on its trade or business of cultivating and raising a tea garden and as part of it to cut timber and remove the same from the leased area without the payment of royalty and that insistence upon payment of royalty unsupported by law is an unreasonable restriction denying the fundamental right guaranteed to the respondent. Article 19(1)(g) guarantees the fundamental freedom to a citizen. The respondent not being a citizen was not entitled to complain of breach or violation of fundamental right under Article 19(1)(g). [see State Trading Corporation of India Ltd Vs Commercial Tax Officer, Vishakhapatnam & Tata Engineering and Locomotive Co. Vs. State of Bihar.] However, the shareholders of a company can complain of infringement of their fundamental rights. [see Bennett Coleman & Co. and Ors Vs. Union of India and Ors.] Such is not the case pleaded. Therefore, the writ petition on the allegation of infringement of fundamental right under Article 19(1)(g) at the instance of respondent company alone was not maintainable.
The issue whether a company can seek information came up before the Central Information Commission in a number of cases. It was held by the double bench of CIC in the case of Inder Grover Vs Ministry of Railways decided on 27/6/2006 (CIC/OK/A/2006/00121) that it would have been in order if the CPIO had declined the information under Section-3 of the Act as the Appellant had applied as the Managing Director of the Company and not as citizen of India.
In the case of Bibhav Kumar Vs. University of Delhi decided on 3/7/2006 (CIC/OK/A/2006/00050) the double bench of the Commission held that “the Commission could not agree with the PIO’s contention that the information was sought on behalf of an institution. The Appellant had applied in his own name and had only given his address as that of an NGO for the purpose of correct delivery of post. He had informed the PIO about the change of address. Thus merely giving the address of an NGO does not imply that the institution was asking for the information” In this case, the applicant as a citizen submitted RTI Application and merely used the address of an NGO for communication.
In the case of J.C. Talukdar Vs. C.E.(E) CPWD Kolkata (CIC/WB/C/2007/ 00104 & 105 dated 30/3/2007), the Applicant Shri. Talukdar, requested for certain information from CPWD, Kolkata, in his capacity as Managing Director of one Ganesh Electric Stores. This application was made in his name and under his signature. The said request was refused under Section 3 of the RTI Act. Consequently Shri. Talukdar filed an appeal before CIC. In this case, the CIC held that –
In the case of Secretary, Cuttack Tax Bar Association Vs. Commissioner of Income Tax (CIC/AT/A/2007/00410 decided on 03/03/2008), the Full Bench of CIC held that –
In the case of Kuljit Singh Vs. Power Finance Corporation Ltd (CIC/AD/A/2012/000570 etc 20/5/2013), the issue whether appellant Kuljit Singh is entitled to seek information on behalf of Ernst & Young ( an incorporated company ) has come up before the Full Bench of Central Information Commission, in which the Commission held that –
Following conclusions can be drawn:
‘Person’ defined in Section 3(42) of the General Clauses Act, 1897, include natural person and juristic person.
Every citizen is a person, but the vice versa is not true. Artificial or juristic person cannot be a citizen.
Juristic person cannot enforce fundamental rights, but the individual citizens forming such legal entity / juristic persons can invoke the fundamental rights.
Right to Information Act confers right not to all persons, but only on Citizens.
Thus two distinct positions emerged from the above –
When an RTI Application is made by a shareholder or a Managing Director or Director or Official of a company or any legal entity, under his name and signature, (even when using the company/association Letter Head), his status as a citizen does not cease to exist and therefore the RTI application is maintainable.
When an RTI Application is made and signed by its Managing Director or Director or Secretary under official designation, without indicating the name of person, it is the Company or Association which is the applicant. As a distinct legal entity, the Association or its Secretary in its official designation cannot be treated as “citizen” in law and therefore the RTI application is not maintainable.