WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 23.04.2009 PRONOUNCED ON: 07.01.2010 WP (C)No.876/2007 INDIAN OLYMPIC ASSOCIATION ……. PETITIONER Through : Mr. Harish Malhotra, Sr. Advocate with Mr. Lovkesh Sawhney, Advocate Vs. VEERESH MALIK & ORS. …….. RESPONDENTS Through : Mr. P.P. Malhotra, ASG with Mr. Dalip Mehra and Mr. Rajiv Ranan Mishra, Advocates for UOI. Mr. Sushant Kumar with Mr. Abhinav Verma, Advocate for Resp-1 WP(C) No.1212/2007 SANSKRITI SCHOOL …….. PETITIONER Through : Mr. Raju Ramchandran, Sr. Advocate, Sr. Advocate with Mr. Shridhar Y.Vhitale and Mr. Mrigank Prabhakar, Advocates Vs. CENTRAL INFORMATION COMMISSION …….. RESPONDENT Through : Mr. Ravi Varma and Mr. Milind Jha, Advocates Mr. K.K. Nigam, advocate WP(C) No.1161/2008 ORGANISING COMMITTEE COMMONWEALTH GAMES 2010, DELHI ……. PETITIONER Vs. UNION OF INDIA ........ RESPONDENT Through : Mr. P.P. Malhotra, ASG with Mr. Dalip Mehra and Mr Rajiv Ranjan Mishra, Advocate for UOI. WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 2 CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? HON’BLE MR. JUSTICE S.RAVINDRA BHAT % 1. The present judgment will dispose of three writ petitions filed by the Indian Olympic Association (the petitioner in W.P. 876/2007, hereafter referred to as “the IOA”), the Sanskriti School, petitioner in W.P. 1212/2007, (hereafter referred to as “the school”) and the Organizing Committee of the Commonwealth Games, 2010, Delhi (petitioner in W.P. 1161/2008, hereafter referred to as “the Games Committee”). The common question involved is as to the applicability of the Right to Information Act (hereafter referred to as “the Act”), with broad reference to whether the writ petitioners are “Public Authorit(ies)” within the meaning of the term under Section 2(h) of the said Act. Petitioners‟ facts and contentions: WP 876/2007 2. Briefly the facts of the case in W.P. 876/2007, filed by the IOA are that the IOA is the apex body in the field of Olympic sports in the country and a society registered under the Indian laws. It is an autonomous body controlled and supervised by the International Olympic Committee. The first respondent applied for information from the Central Government, addressing a letter to the Central Public Information Officer (CPIO), seeking particulars relating to the hierarchy of the authorities set-up under the Act, status of the latest audited accounts of the IOA for the years 2004-05, 2005-06 and all WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 3 particulars of expenses incurred by the IOA in connection with the visits by anyone to Melbourne or any other destination in connection with the Commonwealth Games, from 1st January, 2006 to 15th April, 2006. Not receiving the reply of the kind he expected, the first respondent/information applicant approached the third respondent (referred to as “the CIC”) with a complaint. The petitioner, and second respondent (referred to as “the Central Government”), made submissions as to the maintainability of the proceedings before the CIC. 3. The petitioner contends that it is completely autonomous from the governmental authorities and relies upon specific provisions of the Olympic Charter, particularly, Chapter 4, which defines the mission and role of National Olympic Committees; Clauses- 31(3); (4)(1); 8(1)(1.1)(1.2); Clause 32(4)(7), 7.1, 7.2, 7.3, 7.4, 7.5, 7.6 and 9.4. It is contended that a composite reading of these conditions, which are uniformly applicable to all National Olympic Committees, such as the IOA reveal that every such National Olympic Committee is autonomous and has to guard its independence from any attempts to control its functioning or against any attempts at imposing outside regulatory measures. The said provisions, relied upon, read as follows: “31 Mission and Role of the NOCs* …3. The NOCs have the exclusive powers for the representation of their respective countries at the Olympic Games and at the regional, continental or world multi-sports competitions patronized by the IOC. 4. ….. 1. The NOCs must work to maintain harmonious and cooperative relations with appropriate governmental bodies; they must also contribute effectively to the establishment of programmes for the promotion of sport at all levels. As sport contributes to education, health, the economy and social order, it is desirable for the National Olympic Committees to enjoy the support of the public authorities in achieving their objectives. Nevertheless, the NOCs shall preserve their autonomy and resist all pressures of any kind, including those of a political, religious or economic nature that may prevent them from complying with the Olympic Charter. WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 4 …….. 8. In order to fulfill their mission, the NOCs may cooperate with governmental or non-governmental bodies. However, they must never associate themselves with any activity, which would be in contradiction with the Olympic Charter. 1. Apart from the measures and sanctions provided in case of infringement of the Olympic Charter, the IOC may, after having heard an NOC, suspend it or withdraw its recognition from it. 1.1 If the activity of such NOC is hampered by the effect of legal provisions or regulations in force in the country concerned or by acts of other entities within such country, whether sporting or otherwise; 1.2 If the making or expression of the will of the national federations or other entities belonging to such NOC or represented within it is hampered by the effect of legal provisions or regulations in force in the country concerned or by acts of other entities within such country, whether sporting or otherwise. 32. Composition of the NOCs 4. Governments or other public authorities shall not designate any members of an NOC. However, an NOC may decide, at its discretion, to elect as members representatives of such authorities. Bye-law to Rules 31 and 32. 7. NOCs which cease temporarily or permanently to be recognized by the IOC thereupon lose all rights conferred upon them by the IOC including, but not limited to, the rights; 7.1 to call or refer to themselves as “National Olympic Committee” 7.2 to use their Olympic emblems. 7.3 to benefit from the activity of Olympic Solidarity. 7.4 To take part in activities led or patronized by the IOC (including regional games); 7.5 To send competitors, team officials and other team personnel to the Olympic Games. 7.6 To belong to any association of NOCs. WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 5 …. 9.4 seek sources of financing which will enable them to maintain their autonomy in all respects. The collection of funds must however, be accomplished in accordance with the Olympic Charter and in such a manner that the dignity and independence of the NOC are not harmed.” 4. The IOA alludes to a specific declaration by the International Olympic Committee, known as the “AOMORI Declaration”. The said resolution was made by the General Assembly of the Olympic Committee, which, keeping with the spirit of the Charter, regarding the autonomy of every National Committee resolved that any attempt at outside control or violation of rules of the Olympic Charter would result in withdrawal of recognition of that National Olympic Committee by the international body. IOA reiterates that there is no Central Government representation in its bodies; its Executive Committee and elected office-bearers enter into arrangements with public or private organizations for furtherance of the Charter and the IOA‟s objectives, independent of any control of outside agencies. 5. IOA submits that its funding is five-fold, which includes, in the first instance, funding by the International Olympic Committee; Olympic Committee of Asia; secondly, funding through sponsorship; thirdly, annual subscription, if received from members; fourth, International Solidarity Funds and lastly, through miscellaneous receipts; through donations etc. IOA contends that all these aspects were submitted to the CIC, which was informed that the Central Government or its agencies give limited assistance to the players who participate in international events. Even there, the IOA says that it manages to raise funds through sponsorship to meet additional needs of the players; it funds the bills for travelling, boarding, lodging of the national team whenever participation in international tournaments or events or coaching camps that take place abroad. Such financial assistance keeps varying and is dependent upon the concerned sporting events of the year. The IOA states that it does not receive financial assistance of a particular kind or a fixed sum every year and that such funding is contingent or event-based. The IOA submits that travelling expenses for the tickets of sports persons are paid by the WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 6 Central Government directly to the travel agents, who issue the tickets directly to the players and such persons. The IOA also does not bear other incidental expenses but prepares the estimate for boarding, lodging and other travel related miscellaneous expenses, which are forwarded to the Central Government, which then, in turn, sanctions 85% of such expenses, after sanction-money is deposited into the IOA account and directly remitted to the service provider/hotel etc. As regards coaching camps, the Central Government reimburses the concerned National Sports Federations for the expenses incurred, or directly makes payments to the players. All funds received from or disbursed by the Central Government are duly accounted for and subject to scrutiny by the Comptroller and Auditor General of India, who addresses the public concern for appropriate utilization and accounting of the amounts. 6. It is contended that completely ignoring these salient aspects, the CIC, by its impugned order dated 28.11.2006, brushed-aside IOA‟s objections and decided that it was a public-authority and thus obliged to comply with the provisions of the Act. 7. The relevant part of the impugned order of CIC reads as follows: “8. In the present case, in terms of Olympic Charter, IOA has the exclusive powers for the representation of India at the Olympic Games and at the regional, continental or multi sports competitions patronized by the IOC. In other words, the main function of IOA is to act as the nodal agency for participation of Indian sports contingents in various international sports events. Whether the Government provides substantial funds either directly or indirectly to IOA to discharge its functions is the issue for consideration. The term “Substantially financed” is not defined in the RTI Act. When a term is not defined in an Act, the normal rule is to find the definition of the term in a relatable statute or legislation and apply the same. In the present case, as submitted by the Ministry, CAG conducts the audit of IOA and therefore, it would be appropriate to apply the definition given in Section 14(1) of CAG Act-1971 for the term “substantially financed”. According to this Section, when the loan or grant by the government to a body/authority is not less than Rs 25 lakhs and the amount of such loan or grant is not less than 75% of the total expenditure of that body/authority, then such body/authority shall be deemed to be substantially financed by such grants/loans. Direct funding could be by way of cash grants, reimbursement of expenses etc., and indirect WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 7 funding could be meeting the expenses directly or in kind. The learned counsel for IOA did not challenge the details given by the Ministry of financial assistance given to IOA by the Government, from which it is clear that substantial funding not only for IOAs discharging its function but also towards construction of its building has been provided by the Government. I have also perused the annual accounts of IOA for the year 2003-04. In that year, of the total expenditure incurred of Rs.392 lakhs, the financing by the Central and State governments, either by way of grants or otherwise is found to be of about Rs 320 lakhs constituting roughly to 80%% of the expenditure. Thus, not only the financing by the Government is more than Rs.25 lakhs but the same constitutes more than 75% of the expenditure of IOA. I do not have the details of the government financing for earlier years, but considering the fact that, as submitted by the Ministry that the audit of IOA is being conducted by CAG, IOA must have been substantially financed by the Government in those years also. This would indicate that without the financial assistance of the Government, IOA is unlikely to be able to discharge its functions under the Olympic Charter. Therefore, since IOA is found to be substantially financed either directly or indirectly by the funds provided by the Government, I have no hesitation to hold that it is a public authority governed by the provisions of the RTI Act. IOA has contended that that in terms of Olympic Charter, IOA cannot be under the control of the Government or bureaucrats. Just because, it is a public authority in terms of RTI Act, it neither becomes a governmental organization nor can be treated to be under the control of the Government. Therefore the said contention is misplaced. The object of RTI Act is to bring transparency and since IOA discharges public function in the sense, that it is the nodal agency through which alone citizens could participate in international sports, it should have no hesitation to keep its functions transparent. Being a public authority in terms of RTI Act, does not, and cannot, in any way compromise its position or functioning in relation to the Olympic Charter. 9. Accordingly I direct IOA to publish details as required in terms of 4(b) of RTI Act and also to designate CPIO and AA within a month from the date of this Decision. It will also furnish the information sought by the Complainant by the same date. Ministry of Sports shall ensure compliance of this Decision” 8. The IOA contends that the impugned order is unsustainable because it is not a public authority within the meaning of the terms under Section 2(h) of the Act. It relies upon its constitution, submitting that its members have no connection with any public body and are drawn on purely individual basis. Its administrative mechanism and management are the result of independently-held elections and that the membership is WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 8 drawn from National Sports Associations or Federations whose games are included in the Olympic Commonwealth, Asian and South-Asian Federation Games‟ programs. The voting is exclusively from amongst the members indicated in Clause-XI of the Constitution. The powers and duties of the office-bearers and other functionaries are also specifically mentioned. The IOA disciplines its members and office-bearers- for which there is a separate and autonomous code; the list of members who constitute the IOA are detailed in the Constitution. The IOA next contends that there is no element of state or public control in regard to its constitution, establishment or functioning. It argues that there is no suggestion of its performing any statutory or public functioning that can be a matter of concern to the people at large. 9. As far as IOA‟s funding, utilization of the amounts received and audited or accounting controls are concerned, the IOA relies upon copies of auditor‟s reports and audited statements of accounts for the periods 01.04.1995 to 31.03.1996, 01.04.1996 to 31.03.1997, 01.04.1997 to 31.03.1998, 01.04.1998 to 31.03.1999, 01.04.1999 to 31.03.2000, 01.04.2000 to 31.03.2001, 01.04.2001 to 31.03.2002, 01.04.2002 to 31.03.2003, 01.04.2003 to 31.03.2004, 01.04.2004 to 31.03.2005. Pointing to the contents of these reports, it submitted that the income generated is through affiliation and membership fees, interest on fixed deposits and saving deposits, sponsorship and royalty etc. It is pointed that there is no fixed percentage or pattern in regard to the amounts received from government or government agencies and as to the characteristics, the same is not financed, let-alone substantially financed - the satisfaction of which criteria only could possibly apply provisions of the Act to the IOA. It is reiterated by the learned counsel that the IOA is independent and autonomous and a close scrutiny of the audited reports, copies of which are placed on record, disclose that the funds received from the government were for specific performances and must have been directly remitted to the concerned parties, which provided services such as air-travel, ticketing, boarding, transport etc. An objective analysis of the pattern of income and expenditure would reveal that IOA is not dependent on the Central Government largesse or funds; it is WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 9 autonomous; neither its membership nor its management or office-bearers are subject to government control and importantly, the Central Government has no say in its affairs. Learned counsel points out that the executive or governing council of the IOA or its functionaries do not comprise of any Central Government or public agency representative so far as to remotely suggest that IOA performs any functions of a public character of the kind that would attract provisions of the Act. W.P. 1161/2008 10. The Commonwealth Games Committee, in W.P. 1161/2008 impugns the Office Orders of the Ministry of Sports and Youth Affairs, Central Government, dated 01.11.2007 and 28.11.2007, declaring it to be a public authority, as defined under the Act. The Committee was registered as a society on 10.02.2005 by the Registrar of Societies, Govt. of NCT of Delhi. Its Charter is to organize/conduct the Commonwealth Games, 2010; assigned or allocate to the IOA, which is an affiliate of the Commonwealth Games Federation. 11. Like the IOA, the Games Committee asserts that it is an autonomous and independent society, having no connection with the Central Government or any statutory body. The Commonwealth Games, 2010 was allotted to the IOA by the Commonwealth Games Federation by a resolution of its General Assembly in Jamaica. To effectuate this, the IOA signed a host city agreement dated 13.11.2007 to which the Commonwealth Games Federation, the IOA, the Central Government and the Govt. of NCT of Delhi were parties and signatories. It is contended that the role and duty of each party as well as their obligations are set-out in detail in that contract. The Games Committee states that sometime in April-May 2007, the applicant, i.e. Team One Network Communications approached it under the Act, seeking some information. The Games Committee refused to entertain the application under the Act, stating that it was not a public authority. Team One (“the information applicant”) then approached the Central Government, which, by its WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 10 letter, dated 29.05.2007 wrote to the Games Committee, stating that it is governed by the provisions of the Act, and enumerated the following reasons: (1) That the Games Committee had entered into a “Host-city” contract (hereafter “the contract”) to which the Central Government was one of the signatories; (2) Decisions pertaining to appointment of Chairperson and composition of the Games Committee Society were taken by a Group of Ministers (GoM) set-up by the Central Government, which is providing substantial upfront funds and has also undertaken to meet the shortfall between revenue and expenditure of the Games Committee. This letter was responded by the Games Committee on 20.06.2007, contesting each reason and further arguing that it was not covered by the Act and that it was not a public authority. As regards its creation, the Games Committee relied upon Article 27(C) of the Constitution of the Commonwealth Games Federation and the Resolution dated 01.11.2004 by the General Assembly of the IOA, (which is, in turn, an autonomous body and an affiliate of the International Olympic Committee). The Games Committee also relies upon the IOA‟s arguments that the latter is autonomous and is only subjected to control by the International Olympic Committee. 12. The Games Committee claims that it owes its existence to Article 27(C) of the Constitution of the Commonwealth Games Federation, which obliges the IOA to create another body like it. Reference is made to recital D of the host-city contract, which reads as follows: “D. IOA will in accordance with Article 27(C) of the Constitution and with the approval of the CGF delegate the Organization of the Games to the OC which, while working in partnership with the IOA, will also be directly responsible to the CGF.”“ 13. The Committee also relies upon other Articles or provisions of the Contract, to say that Article 3, which lists the role, responsibility of the respondent, does not authorize it to constitute it and, rather emphasizes that the Central Government has to provide the WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 11 support to the Committee, and the IOA in the manner provided in the Host City Contract. It is said that Article 3 of the Host City Contract does not place any responsibility on the respondent in terms of establishing, managing, supervising or being accountable for acts of the petitioner in any manner. The Committee submits that as owner of the Games, the contract binds it and IOA only for the organization and conduct of the Games. 14. It is also stated that the Host City Contract is very particular in providing separate roles and responsibilities on each of the signatories‟ vis-à-vis the organization of the Games without altering or diluting their respective basic character or legal status and it nowhere empowers the respondent to encroach upon the field specifically reserved for the Games Committee. It is thus submitted that the Games Committee is completely autonomous in its role and functioning. The responsibilities of the Central Government under Article 3 of the Host-city contract do not empower it to constitute the Committee; it is emphasized that it has to provide support as agreed upon. 15. The Games Committee states that it has its own Board in accordance with its Memorandum and Rules, comprising of 15 members out of which two members each are nominated by the Central Government and the Govt. of NCT of Delhi and the rest are independently drawn from the IOA, National Sports Federations affiliated to it and so on. Similarly, it is emphasized that the Chairman of the Games Committee is not government-appointed, but nominated by Resolution of the IOA. The space for the Games Secretariat is rented by it; the Games Committee Chairman is empowered to recruit employees to conduct its affairs. The Committee has its autonomous administration and official guidelines which are put in place; the procedures for recruitment are not in any way connected with the Central Government regulations or rules. It is submitted that the Games Committee only has charge of ownership of the Games and not all the physical assets or infrastructure put in place or existing, that is used for such purpose. Article 37 of the Host-city contract provides for a mechanism for distribution of the surplus; it provides that such an amount will be paid to the Commonwealth Games Federation and the IOA. WP(C) Nos. 876/2007, 1212/2007 & 1161/2008 Page 12 16. The Games Committee states that it has been sanctioned budgetary support by the Central Government in the form of a repayable loan, with interest- from the surplus revenue generated by it. It is claimed that the Games Committee is revenue-neutral and that contrary to commercial arrangements which the Central Government has with it, all other stakeholders are provided budgetary support for creating infrastructure through grants. The Games Committee places particular emphasis on the submission that its arrangement is a commercial one, such as where any Company or Society is beneficiary to amounts released that are repayable with interest. For this purpose, it relies upon certain loans issued by the Central Government. It is argued that the Committee had requested for waiver of interest on loan and that the Central Government agreed to these by its decision dated 11.10.2007, stating that interest could be paid only from the surplus, out of the receipts from the Games. 17. The Games Committee submits that the returnable loan is not the only source of funds to enable its functioning but that it has the ability to raise funds from the corporate sector through sponsorship, from banks, by applying for loans etc. The Games Committee Society is not in