Writ jurisdiction without transparency obligations creates an accountability vacuum. In light of the BCCI's exclusion from the RTI Act, examine the adequacy of Section 2(h) in addr

GS2 Accountable Governance
Writ jurisdiction without transparency obligations creates an accountability vacuum. In light of the BCCI's exclusion from the RTI Act, examine the adequacy of Section 2(h) in addressing private bodies that exercise public functions.

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The Hindu

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Introduction

The Right to Information (RTI) Act, 2005 institutionalizes transparency as part of Article 19(1)(a). However, the Supreme Court judgment in BCCI v. Cricket Association of Bihar (2015) exposed a contradiction: bodies performing public functions may be subject to writ jurisdiction under Article 226, yet remain outside RTI obligations under Section 2(h). This creates an accountability vacuum in privatized governance.

Inadequacy of Section 2(h)

Section 2(h) recognizes only bodies that are:

  • Constituted by the Constitution/law/notification; or
  • Owned, controlled, or substantially financed by government.

Thus, the provision relies on structural governmental linkage, not on the nature of functions performed.

Issues Highlighted by the BCCI Case

  • In Zee Telefilms v. Union of India (2005), SC held BCCI is not “State” under Article 12.
  • Yet, in Cricket Association of Bihar (2015), SC observed that BCCI performs public duties and is amenable to writ jurisdiction.
  • BCCI regulates cricket, selects the national team, controls stadium access and broadcasting rights, affecting millions.

Despite such public impact, citizens cannot demand transparency under RTI.

Value Additions

Important Case Laws

  • Ajay Hasia v. Khalid Mujib (1981): Functional and financial control test for determining “State”.
  • Thalappalam Service Coop. Bank v. State of Kerala (2013): “Substantial financing” under RTI must be direct and significant.
  • Justice K.S. Puttaswamy (2017): Transparency and accountability are constitutional values.

Committee Recommendations

  • Second Administrative Reforms Commission (ARC) recommended expanding RTI to private bodies performing public services.
  • National Commission to Review the Working of the Constitution (NCRWC) emphasized transparency in non-state actors exercising public power.

Data / Context

  • India has over 3.5 crore RTI applications annually (Central and State bodies combined), reflecting growing citizen demand for transparency.
  • Increasing privatization in sectors like sports, education, healthcare, and digital platforms enhances the relevance of functional accountability.

Way Forward

  • Amend Section 2(h) to include bodies performing “public functions”.
  • Introduce a functional public authority test similar to the UK model.
  • Mandate proactive disclosure for monopolistic or quasi-regulatory private entities.

Conclusion

The BCCI episode demonstrates that writ accountability without RTI transparency is incomplete. In a governance landscape increasingly shaped by private actors, Section 2(h) requires reform to align transparency obligations with the exercise of public power rather than formal governmental ownership alone.