Registrar of Companies and the Right to Information Act

In the
past, there has been some discussion on whether the concept of right to
information should be extended to the corporate sector or not, but presently it
applies only to a “public authority”. At most, it might include government companies
as the definition of a “public authority” includes “any … body owned,
controlled or substantially financed … 
directly
or indirectly by funds provided by the appropriate Government”.
The next
question is whether the Right to Information Act, 2005 (RTI) can be utilised to
obtain information regarding specific companies that may be available with the
Registrar of Companies (RoC). Under the Companies Act, 1956, companies are
required to make several filings with the RoC. Moreover, under section 610 of
the Companies Act, any person may seek to inspect records at the RoC, and also
obtain copies or extracts of documents for payment of a fee.
The
question as to whether a person may access the RTI Act to obtain records from
the RoC rather than through the inspection provision under the Companies Act,
1956, was the subject matter of a dispute that was decided by the Delhi High
Court in Registrar
of Companies v. Dharmendra Kumar
. In that case, the Delhi High Court
ruled in favour of the RoC that denied access under the RTI Act on the ground
that the Act was unavailable to applicants when the same right could be exercised
through inspection under section 610 of the Companies Act. The court observed:
23.
There can be no doubt that the documents kept by the Registrar, which are filed
or registered by him, as well as the record of any fact required or authorized
to be recorded by the Registrar or registered in pursuance of the Companies Act
qualifies as ―information‖ within the meaning of that expression as used in
Section 2(f) of the RTI Act. However, the question is  — whether the mere fact that the said
documents/record constitutes ―information‖, is sufficient to entitle a citizen
to invoke the provisions of the RTI Act to access the same?
35.
The mere prescription of a higher charge in the other statutory mechanism (in
this case Section 610 of the Companies Act), than that prescribed under the RTI
Act does not make any difference whatsoever. 
The right available to any person to seek inspection/copies of documents
under Section 610 of the Companies Act is governed by the Companies (Central
Government’s) General Rules & Forms, 1956, which are statutory rules and
prescribe the fees for inspection of documents, etc. in Rule 21A.  The said rules being statutory in nature and
specific in their application, do not get overridden by the rules framed under
the RTI Act with regard to prescription of fee for supply of information, which
is general in nature, and apply to all kinds of applications made under the RTI
Act to seek information.  It would also
be complete waste of public funds to require the creation and maintenance of
two parallel machineries by the ROC – one under Section 610 of the Companies
Act, and the other under the RTI Act to provide the same information to an
applicant.  It would lead to unnecessary
and avoidable duplication of work and consequent expenditure.
The
Court was also confronted with the question as to whether there is any
inconsistency between the RTI Act and the Companies Act, which it answered to
the negative. It reasoned as follows:
42.
Firstly, I may notice that I do not find anything inconsistent between the
scheme provided under Section 610 of the Companies Act and the provisions of
the RTI Act.  Merely because a different
charge is collected for providing information under Section 610 of the
Companies Act than that prescribed as the fee for providing information under
the RTI Act does not lead to an inconsistency in the provisions of these two
enactments.  Even otherwise, the
provisions of the RTI Act would not override the provision contained in Section
610 of the Companies Act. Section 610 of the Companies Act is an earlier piece
of legislation.  The said provision was
introduced in the Companies Act, 1956 at the time of its enactment in the year
1956 itself.  On the other hand, the RTI
Act is a much later enactment, enacted in the year 2005.  The RTI Act is a general law/enactment which
deals with the right of a citizen to access information available with a public
authority, subject to the conditions and limitations prescribed in the said
Act.  On the other hand, Section 610 of
the Companies Act is a piece of special legislation, which deals specifically
with the right of any person to inspect and obtain records i.e. information
from the ROC.   Therefore, the later
general law cannot be read or understood to have abrogated the earlier special
law.
While I
am somewhat sanguine about the conclusion arrived at by the court in the
context of the Companies Act, Prashant Reddy provides a critique
of the judgment on the Law and Other Things Blog and points to the dangers of
overextending this principle.

Hat-tip: Law and Other Things

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

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