Cooperative Societies registered under
the Kerala Co-operative Societies Act will not fall within the definition
of “public authority” as defined under Section 2(h) of the RTI Act =
whether a co-
operative society registered under the Kerala Co-operative Societies Act,
1969 (for short “the Societies Act”) will fall within the definition of
“public authority” under Section 2(h) of the Right to Information Act, 2005
(for short “the RTI Act”) and be bound by the obligations to provide
information sought for by a citizen under the RTI Act. =
We, therefore, hold that the Cooperative Societies registered under
the Kerala Co-operative Societies Act will not fall within the definition
of “public authority” as defined under Section 2(h) of the RTI Act and the
State Government letter dated 5.5.2006 and the circular dated 01.06.2006
issued by the Registrar of Co-operative Societies, Kerala, to the extent,
made applicable to societies registered under the Kerala Co-operative
Societies Act would stand quashed in the absence of materials to show that
they are owned, controlled or substantially financed by the appropriate
Government. Appeals are, therefore, allowed as above, however, with no
order as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 9017 OF 2013
(Arising out of SLP (C) No.24290 of 2012)
Thalappalam Ser. Coop. Bank
Ltd. and others Appellants
Versus
State of Kerala and others Respondents
WITH
CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013
(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797 of 2013)
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
2. We are, in these appeals, concerned with the question
whether a co-
operative society registered under the Kerala Co-operative Societies Act,
1969 (for short “the Societies Act”) will fall within the definition of
“public authority” under Section 2(h) of the Right to Information Act, 2005
(for short “the RTI Act”) and be bound by the obligations to provide
information sought for by a citizen under the RTI Act.
3. A Full Bench of the Kerala High Court, in its judgment reported in
AIR 2012 Ker 124, answered the question in the affirmative and upheld the
Circular No.23 of 2006 dated 01.06.2006, issued by the Registrar of the Co-
operative Societies, Kerala stating that all the co-operative institutions
coming under the administrative control of the Registrar, are “public
authorities” within the meaning of Section 2(h) of the RTI Act and obliged
to provide information as sought for. The question was answered by the
Full Bench in view of the conflicting views expressed by a Division Bench
of the Kerala High Court in Writ Appeal No.1688 of 2009, with an earlier
judgment of the Division Bench reported in Thalapalam Service Co-operative
Bank Ltd. v. Union of India AIR 2010 Ker 6, wherein the Bench took the
view that the question as to whether a co-operative society will fall under
Section 2(h) of the RTI Act is a question of fact, which will depend upon
the question whether it is substantially financed, directly or indirectly,
by the funds provided by the State Government which, the Court held, has to
be decided depending upon the facts situation of each case.
4. Mr. K. Padmanabhan Nair, learned senior counsel appearing for some of
the societies submitted that the views expressed by the Division Bench in
Thalapalam Service Co-operative Bank Ltd. (supra) is the correct view,
which calls for our approval. Learned senior counsel took us through the
various provisions of the Societies Act as well as of the RTI Act and
submitted that the societies are autonomous bodies and merely because the
officers functioning under the Societies Act have got supervisory control
over the societies will not make the societies public authorities within
the meaning of Section 2(h) of the RTI Act. Learned senior counsel also
submitted that these societies are not owned, controlled or substantially
financed, directly or indirectly, by the State Government. Learned senior
counsel also submitted that the societies are not statutory bodies and are
not performing any public functions and will not come within the expression
“state” within the meaning under Article 12 of the Constitution of India.
5. Mr. Ramesh Babu MR, learned counsel appearing for the State,
supported the reasoning of the impugned judgment and submitted that such a
circular was issued by the Registrar taking into consideration the larger
public interest so as to promote transparency and accountability in the
working of every co-operative society in the State of Kerala. Reference
was also made to various provisions of the Societies Act and submitted that
those provisions would indicate that the Registrar has got all pervading
control over the societies, including audit, enquiry and inspection and the
power to initiate surcharge proceedings. Power is also vested on the
Registrar under Section 32 of the Societies Act to supersede the management
of the society and to appoint an administrator. This would indicate that
though societies are body corporates, they are under the statutory control
of the Registrar of Co-operative Societies. Learned counsel submitted that
in such a situation they fall under the definition of “pubic authority”
within the meaning of Section 2(h) of the RTI Act. Shri Ajay, learned
counsel appearing for the State Information Commission, stated that the
applicability of the RTI Act cannot be excluded in terms of the clear
provision of the Act and they are to be interpreted to achieve the object
and purpose of the Act. Learned counsel submitted that at any rate having
regard to the definition of “information” in Section 2(f) of the Act, the
access to information in relation to Societies cannot be denied to a
citizen.
Facts:
6. We may, for the disposal of these appeals, refer to the facts
pertaining to Mulloor Rural Co-operative Society Ltd. In that case, one
Sunil Kumar stated to have filed an application dated 8.5.2007 under the
RTI Act seeking particulars relating to the bank accounts of certain
members of the society, which the society did not provide. Sunil Kumar
then filed a complaint dated 6.8.2007 to the State Information Officer,
Kerala who, in turn, addressed a letter dated 14.11.2007 to the Society
stating that application filed by Sunil Kumar was left unattended.
Society, then, vide letter dated 24.11.2007 informed the applicant that the
information sought for is “confidential in nature” and one warranting
“commercial confidence”. Further, it was also pointed out that the
disclosure of the information has no relationship to any “public activity”
and held by the society in a “fiduciary capacity”. Society was, however,
served with an order dated 16.1.2008 by the State Information Commission,
Kerala, stating that the Society has violated the mandatory provisions of
Section 7(1) of the RTI Act rendering themselves liable to be punished
under Section 20 of the Act. State Information Officer is purported to
have relied upon a circular No.23/2006 dated 01.06.2006 issued by the
Registrar, Co-operative Societies bringing in all societies under the
administrative control of the Registrar of Co-operative Societies, as
“public authorities” under Section 2(h) of the RTI Act.
7. Mulloor Co-operative Society then filed Writ Petition No.3351 of 2008
challenging the order dated 16.1.2008, which was heard by a learned Single
Judge of the High Court along with other writ petitions. All the petitions
were disposed of by a common judgment dated 03.04.2009 holding that all co-
operative societies registered under the Societies Act are public
authorities for the purpose of the RTI Act and are bound to act in
conformity with the obligations in Chapter 11 of the Act and amenable to
the jurisdiction of the State Information Commission. The Society then
preferred Writ Appeal No.1688 of 2009. While that appeal was pending, few
other appeals including WA No.1417 of 2009, filed against the common
judgment of the learned Single Judge dated 03.04.2009 came up for
consideration before another Division Bench of the High Court which set
aside the judgment of the learned Single Judge dated 03.04.2009, the
judgment of which is reported in AIR 2010 Ker 6. The Bench held that the
obedience to Circular No.23 dated 1.6.2006 is optional in the sense that if
the Society feels that it satisfies the definition of Section 2(h), it can
appoint an Information Officer under the RTI Act or else the State
Information Commissioner will decide when the matter reaches before him,
after examining the question whether the Society is substantially financed,
directly or indirectly, by the funds provided by the State Government. The
Division Bench, therefore, held that the question whether the Society is a
public authority or not under Section 2(h) is a disputed question of fact
which has to be resolved by the authorities under the RTI Act.
8. Writ Appeal No.1688 of 2009 later came up before another Division
Bench, the Bench expressed some reservations about the views expressed by
the earlier Division Bench in Writ Appeal No.1417 of 2009 and vide its
order dated 24.3.2011 referred the matter to a Full Bench, to examine the
question whether co-operative societies registered under the Societies Act
are generally covered under the definition of Section 2(h) of the RTI Act.
The Full Bench answered the question in the affirmative giving a liberal
construction of the words “public authority”, bearing in mind the
“transformation of law” which, according to the Full Bench, is to achieve
transparency and accountability with regard to affairs of a public body.
9. We notice, the issue raised in these appeals is of considerable
importance and may have impact on similar other Societies registered under
the various State enactments across the country.
10. The State of Kerala has issued a letter dated 5.5.2006 to the
Registrar of Co-operative Societies, Kerala with reference to the RTI Act,
which led to the issuance of Circular No.23/2006 dated 01.06.2006, which
reads as under:
“G1/40332/05
Registrar of Co-operative Societies,
Thiruvananthapuram, Dated 01.06.2006
Circular No.23/2006
Sub: Right to Information Act, 2005- Co-operative Institutions included in
the definition of “Public Authority”
Ref: Governments Letter No.3159/P.S.1/06
Dated 05.05.2006
According to Right to Information Act, 2005, sub-section (1) and (2) of
Section 5 of the Act severy public authority within 100 days of the
enactment of this Act designate as many officers as public information
officers as may be necessary to provide information to persons requesting
for information under the Act. In this Act Section 2(h) defines
institutions which come under the definition of public authority. As per
the reference letter the government informed that, according to Section
2(h) of the Act all institutions formed by laws made by state legislature
is a “public authority” and therefore all co-operative institutions coming
under the administrative control of The Registrar of co-operative societies
are also public authorities.
In the above circumstance the following directions are issued:
1. All co-operative institutions coming under the administrative control of
the Registrar of co-operative societies are “public authorities” under
the Right to Information Act, 2005 (central law No.22 of 2005). Co-
operative institutions are bound to give all information to applications
under the RTI Act, if not given they will be subjected to punishment
under the Act. For this all co-operative societies should appoint public
information/assistant public information officers immediately and this
should be published in the government website.
2. For giving information for applicants government order
No.8026/05/government administration department act and rule can be
applicable and 10 rupees can be charged as fees for each application.
Also as per GAD Act and rule and the government Order No.2383/06 dated
01.04.2006.
3. Details of Right to Information Act are available in the government
website (www.kerala.gov.in..... ) or right to information gov.in ) other
details regarding the Act are also available in the government website.
4. Hereafter application for information from co-operative institutions
need not be accepted by the information officers of this department. But
if they get such applications it should be given back showing the reasons
or should be forwarded to the respective co-operative institutions with
necessary directions and the applicant should be informed about this. In
this case it is directed to follow the time limit strictly.
5. It is directed that all joint registrars/assistant registrars should
take immediate steps to bring this to the urgent notice of all co-
operative institutions. They should inform to this office the steps
taken within one week. The Government Order No.2389/06 dated 01.04.2006
is also enclosed.
Sd/-
V. Reghunath
Registrar of co-operative societies (in charge)”
11. The State Government, it is seen, vide its letter dated 5.5.2006 has
informed the Registrar of Co-operative Societies that, as per Section 2(h)
of the Act, all institutions formed by laws made by State Legislature is a
“public authority” and, therefore, all co-operative institutions coming
under the administrative control of the Registrar of Co-operative Societies
are also public authorities.
12. We are in these appeals concerned only with the co-operative
societies registered or deemed to be registered under the Co-operative
Societies Act, which are not owned, controlled or substantially financed by
the State or Central Government or formed, established or constituted by
law made by Parliament or State Legislature.
Co-operative Societies and Article 12 of the Constitution:
13. We may first examine, whether the Co-operative Societies, with which
we are concerned, will fall within the expression “State” within the
meaning of Article 12 of the Constitution of India and, hence subject to
all constitutional limitations as enshrined in Part III of the
Constitution. This Court in U.P. State Co-operative Land Development Bank
Limited v. Chandra Bhan Dubey and others (1999) 1 SCC 741, while dealing
with the question of the maintainability of the writ petition against the
U.P. State Co-operative Development Bank Limited held the same as an
instrumentality of the State and an authority mentioned in Article 12 of
the Constitution. On facts, the Court noticed that the control of the
State Government on the Bank is all pervasive and that the affairs of the
Bank are controlled by the State Government though it is functioning as a
co-operative society, it is an extended arm of the State and thus an
instrumentality of the State or authority as mentioned under Article 12 of
the Constitution. In All India Sainik Schools employees’ Association v.
Defence Minister-cum-Chairman Board of Governors, Sainik Schools Society,
New Delhi and others (1989) Supplement 1 SCC 205, this Court held that the
Sainik School society is “State” within the meaning of Article 12 of the
Constitution after having found that the entire funding is by the State
Government and by the Central Government and the overall control vests in
the governmental authority and the main object of the society is to run
schools and prepare students for the purpose feeding the National Defence
Academy.
14. This Court in Executive Committee of Vaish Degree College, Shamli and
Others v. Lakshmi Narain and Others (1976) 2 SCC 58, while dealing with
the status of the Executive Committee of a Degree College registered under
the Co-operative Societies Act, held as follows:
“10………It seems to us that before an institution can be a statutory
body it must be created by or under the statute and owe its existence
to a statute. This must be the primary thing which has got to be
established. Here a distinction must be made between an institution
which is not created by or under a statute but is governed by certain
statutory provisions for the proper maintenance and administration of
the institution. There have been a number of institutions which
though not created by or under any statute have adopted certain
statutory provisions, but that by itself is not, in our opinion,
sufficient to clothe the institution with a statutory character……….”
15. We can, therefore, draw a clear distinction between a body which is
created by a Statute and a body which, after having come into existence, is
governed in accordance with the provisions of a Statute. Societies, with
which we are concerned, fall under the later category that is governed by
the Societies Act and are not statutory bodies, but only body corporate
within the meaning of Section 9 of the Kerala Co-operative Societies Act
having perpetual succession and common seal and hence have the power to
hold property, enter into contract, institute and defend suites and other
legal proceedings and to do all things necessary for the purpose, for which
it was constituted. Section 27 of the Societies Act categorically states
that the final authority of a society vests in the general body of its
members and every society is managed by the managing committee constituted
in terms of the bye-laws as provided under Section 28 of the Societies Act.
Final authority so far as such types of Societies are concerned, as
Statute says, is the general body and not the Registrar of Cooperative
Societies or State Government.
16. This Court in Federal Bank Ltd. v. Sagar Thomas and Others (2003) 10
SCC 733, held as follows:
“32. Merely because Reserve Bank of India lays the banking
policy in the interest of the banking system or in the interest of
monetary stability or sound economic growth having due regard to the
interests of the depositors etc. as provided under Section 5(c)(a) of
the Banking Regulation Act does not mean that the private companies
carrying on the business or commercial activity of banking, discharge
any public function or public duty. These are all regulatory measures
applicable to those carrying on commercial activity in banking and
these companies are to act according to these provisions failing which
certain consequences follow as indicated in the Act itself. As to the
provision regarding acquisition of a banking company by the
Government, it may be pointed out that any private property can be
acquired by the Government in public interest. It is now a judicially
accepted norm that private interest has to give way to the public
interest. If a private property is acquired in public interest it does
not mean that the party whose property is acquired is performing or
discharging any function or duty of public character though it would
be so for the acquiring authority”.
17. Societies are, of course, subject to the control of the statutory
authorities like Registrar, Joint Registrar, the Government, etc. but
cannot be said that the State exercises any direct or indirect control over
the affairs of the society which is deep and all pervasive. Supervisory or
general regulation under the statute over the co-operative societies, which
are body corporate does not render activities of the body so regulated as
subject to such control of the State so as to bring it within the meaning
of the “State” or instrumentality of the State. Above principle has been
approved by this Court in S.S. Rana v. Registrar, Co-operative Societies
and another (2006) 11 SCC 634. In that case this Court was dealing with
the maintainability of the writ petition against the Kangra Central Co-
operative Society Bank Limited, a society registered under the provisions
of the Himachal Pradesh Co-operative Societies Act, 1968. After examining
various provisions of the H.P. Co-operative Societies Act this Court held
as follows:
“9. It is not in dispute that the Society has not been constituted
under an Act. Its functions like any other cooperative society are
mainly regulated in terms of the provisions of the Act, except as
provided in the bye-laws of the Society. The State has no say in the
functions of the Society. Membership, acquisition of shares and all
other matters are governed by the bye-laws framed under the Act. The
terms and conditions of an officer of the cooperative society,
indisputably, are governed by the Rules. Rule 56, to which reference
has been made by Mr Vijay Kumar, does not contain any provision in
terms whereof any legal right as such is conferred upon an officer of
the Society.
10. It has not been shown before us that the State exercises any
direct or indirect control over the affairs of the Society for deep
and pervasive control. The State furthermore is not the majority
shareholder. The State has the power only to nominate one Director. It
cannot, thus, be said that the State exercises any functional control
over the affairs of the Society in the sense that the majority
Directors are nominated by the State. For arriving at the conclusion
that the State has a deep and pervasive control over the Society,
several other relevant questions are required to be considered,
namely, (1) How was the Society created? (2) Whether it enjoys any
monopoly character? (3) Do the functions of the Society partake to
statutory functions or public functions? and (4) Can it be
characterised as public authority?
11. Respondent 2, the Society does not answer any of the
aforementioned tests. In the case of a non-statutory society, the
control thereover would mean that the same satisfies the tests laid
down by this Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See
Zoroastrian Coop. Housing Society Ltd. v. Distt. Registrar, Coop.
Societies (Urban).]
12. It is well settled that general regulations under an Act, like the
Companies Act or the Cooperative Societies Act, would not render the
activities of a company or a society as subject to control of the
State. Such control in terms of the provisions of the Act are meant to
ensure proper functioning of the society and the State or statutory
authorities would have nothing to do with its day-to-day functions.”
18. We have, on facts, found that the Co-operative Societies, with which
we are concerned in these appeals, will not fall within the expression
“State” or “instrumentalities of the State” within the meaning of Article
12 of the Constitution and hence not subject to all constitutional
limitations as enshrined in Part III of the Constitution. We may, however,
come across situations where a body or organization though not a State or
instrumentality of the State, may still satisfy the definition of public
authority within the meaning of Section 2(h) of the Act, an aspect which we
may discuss in the later part of this Judgment.
Constitutional provisions and Co-operative autonomy:
19. Rights of the citizens to form co-operative societies voluntarily, is
now raised to the level of a fundamental right and State shall endeavour to
promote their autonomous functioning. The Parliament, with a view to
enhance public faith in the co-operative institutions and to insulate them
to avoidable political or bureaucratic interference brought in
Constitutional (97th Amendment) Act, 2011, which received the assent of the
President on 12.01.2012, notified in the Gazette of India on 13.01.2012 and
came into force on 15.02.2012.
20. Constitutional amendment has been effected to encourage economic
activities of co-operatives which in turn help progress of rural India.
Societies are expected not only to ensure autonomous and democratic
functioning of co-operatives, but also accountability of the management to
the members and other share stake-holders. Article 19 protects certain
rights regarding freedom of speech. By virtue of above amendment under
Article 19(1)(c) the words “co-operative societies” are added. Article
19(1)(c) reads as under:
“19(1)(c) – All citizens shall have the right to form associations or
unions or co-operative societies”.
Article 19(1)(c), therefore, guarantees the freedom to form an association,
unions and co-operative societies. Right to form a co-operative society
is, therefore, raised to the level of a fundamental right, guaranteed under
the Constitution of India. Constitutional 97th Amendment Act also inserted
a new Article 43B with reads as follows :-
“the State shall endeavour to promote voluntary formation, autonomous
functioning, democratic control and professional management of co-
operative societies”.
21. By virtue of the above-mentioned amendment, Part IX-B was also
inserted containing Articles 243ZH to 243ZT. Cooperative Societies are,
however, not treated as units of self-government, like Panchayats and
Municipalities.
22. Article 243(ZL) dealing with the supersession and suspension of board
and interim management states that notwithstanding anything contained in
any law for the time being in force, no board shall be superseded or kept
under suspension for a period exceeding six months. It provided further
that the Board of any such co-operative society shall not be superseded or
kept under suspension where there is no government shareholding or loan or
financial assistance or any guarantee by the Government. Such a
constitutional restriction has been placed after recognizing the fact that
there are co-operative societies with no government share holding or loan
or financial assistance or any guarantee by the government.
23. Co-operative society is a state subject under Entry 32 List I Seventh
Schedule to the Constitution of India. Most of the States in India enacted
their own Co-operative Societies Act with a view to provide for their
orderly development of the cooperative sector in the state to achieve the
objects of equity, social justice and economic development, as envisaged in
the Directive Principles of State Policy, enunciated in the Constitution of
India. For co-operative societies working in more than one State, The
Multi State Co-operative Societies Act, 1984 was enacted by the Parliament
under Entry 44 List I of the Seventh Schedule of the Constitution. Co-
operative society is essentially an association or an association of
persons who have come together for a common purpose of economic development
or for mutual help.
Right to Information Act
24. The RTI Act is an Act enacted to provide for citizens to secure,
access to information under the control of public authorities and to
promote transparency and accountability in the working of every public
authority. The preamble of the Act reads as follows:
“An Act to provide for setting out the practical regime of right
to information for citizens to secure access to information under the
control of public authorities, in order to promote transparency and
accountability in the working of every public authority, the
constitution of a Central Information Commission and State Information
Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic
Republic;
AND WHEREAS democracy requires an informed citizenry and
transparency of information which are vital to its functioning and
also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is
likely to conflict with other public interests including efficient
operations of the Governments, optimum use of limited fiscal resources
and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting
interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing
certain information to citizens who desire to have it.”
25. Every public authority is also obliged to maintain all its record
duly catalogued and indexed in a manner and the form which facilitates the
right to information under this Act and ensure that all records that are
appropriate to be computerized are, within a reasonable time and subject to
availability of resources, computerized and connected through a network all
over the country on different systems so that access to such record is
facilitated. Public authority has also to carry out certain other
functions also, as provided under the Act.
26. The expression “public authority” is defined under Section 2(h) of
the RTI Act, which reads as follows:
“2. Definitions._ In this Act, unless the context otherwise requires :
(h) "public authority" means any authority or body or institution of
self-government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any—
(i) body owned, controlled or substantially financed;
ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the
appropriate Government”
27. Legislature, in its wisdom, while defining the expression “public
authority” under Section 2(h), intended to embrace only those categories,
which are specifically included, unless the context of the Act otherwise
requires. Section 2(h) has used the expressions ‘means’ and includes’.
When a word is defined to ‘mean’ something, the definition is prima facie
restrictive and where the word is defined to ‘include’ some other thing,
the definition is prima facie extensive. But when both the expressions
“means” and “includes” are used, the categories mentioned there would
exhaust themselves. Meanings of the expressions ‘means’ and ‘includes’
have been explained by this Court in Delhi Development Authority v. Bhola
Nath Sharma (Dead) by LRs and others (2011) 2 SCC 54, (in paras 25 to 28).
When such expressions are used, they may afford an exhaustive explanation
of the meaning which for the purpose of the Act, must invariably be
attached to those words and expressions.
28. Section 2(h) exhausts the categories mentioned therein. The former
part of 2(h) deals with:
(1) an authority or body of self-government established by or under the
Constitution,
(2) an authority or body or institution of self- government established
or constituted by any other law made by the Parliament,
(3) an authority or body or institution of self-government established or
constituted by any other law made by the State legislature, and
(4) an authority or body or institution of self-government established or
constituted by notification issued or order made by the appropriate
government.
29. Societies, with which we are concerned, admittedly, do not fall in
the above mentioned categories, because none of them is either a body or
institution of self-government, established or constituted under the
Constitution, by law made by the Parliament, by law made by the State
Legislature or by way of a notification issued or made by the appropriate
government. Let us now examine whether they fall in the later part of
Section 2(h) of the Act, which embraces within its fold:
(5) a body owned, controlled or substantially financed, directly or
indirectly by funds provided by the appropriate government,
(6) non-governmental organizations substantially financed directly or
indirectly by funds provided by the appropriate government.
30 The expression ‘Appropriate Government’ has also been defined under
Section 2(a) of the RTI Act, which reads as follows :
“2(a). “appropriate Government” means in relation to a public
authority which is established, constituted, owned, controlled
or substantially financed by funds provided directly or
indirectly-
i) by the Central Government or the Union territory
administration, the Central Government;
ii) by the State Government, the State Government.”
31. The RTI Act, therefore, deals with bodies which are owned, controlled
or substantially financed, directly or indirectly, by funds provided by the
appropriate government and also non-government organizations substantially
financed, directly or indirectly, by funds provided by the appropriate
government, in the event of which they may fall within the definition of
Section 2(h)(d)(i) or (ii) respectively. As already pointed out, a body,
institution or an organization, which is neither a State within the meaning
of Article 12 of the Constitution or instrumentalities, may still answer
the definition of public authority under Section 2(h)d (i) or (ii).
(a) Body owned by the appropriate government – A body owned by the
appropriate government clearly falls under Section 2(h)(d)(i) of the Act.
A body owned, means to have a good legal title to it having the ultimate
control over the affairs of that body, ownership takes in its fold control,
finance etc. Further discussion of this concept is unnecessary because,
admittedly, the societies in question are not owned by the appropriate
government.
(b) Body Controlled by the Appropriate Government
A body which is controlled by the appropriate government can fall
under the definition of public authority under Section 2h(d)(i). Let us
examine the meaning of the expression “controlled” in the context of RTI
Act and not in the context of the expression “controlled” judicially
interpreted while examining the scope of the expression “State” under
Article 12 of the Constitution or in the context of maintainability of a
writ against a body or authority under Article 226 of the Constitution of
India. The word “control” or “controlled” has not been defined in the
RTI Act, and hence, we have to understand the scope of the expression
‘controlled’ in the context of the words which exist prior and subsequent
i.e. “body owned” and “substantially financed” respectively. The meaning
of the word “control” has come up for consideration in several cases before
this Court in different contexts. In State of West Bengal and another v.
Nripendra Nath Bagchi, AIR 1966 SC 447 while interpreting the scope of
Article 235 of the Constitution of India, which confers control by the High
Court over District Courts, this Court held that the word “control”
includes the power to take disciplinary action and all other incidental or
consequential steps to effectuate this end and made the following
observations :
“The word ‘control’, as we have seen, was used for the first time in
the Constitution and it is accompanied by the word ‘vest’ which is a
strong word. It shows that the High Court is made the sole custodian
of the control over the judiciary. Control, therefore, is not merely
the power to arrange the day to day working of the court but
contemplates disciplinary jurisdiction over the presiding Judge.... In
our judgment, the control which is vested in the High Court is a
complete control subject only to the power of the Governor in the
matter of appointment (including dismissal and removal) and posting
and promotion of District Judges. Within the exercise of the control
vested in the High Court, the High Court can hold enquiries, impose
punishments other than dismissal or removal, ...”
32. The above position has been reiterated by this Court in Chief
Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others (1979) 2
SCC 34. In Corporation of the City of Nagpur Civil Lines, Nagpur and
another v. Ramchandra and others (1981) 2 SCC 714, while interpreting the
provisions of Section 59(3) of the City of Nagpur Corporation Act, 1948,
this Court held as follows :
“4. It is thus now settled by this Court that the term “control” is
of a very wide connotation and amplitude and includes a large variety
of powers which are incidental or consequential to achieve the powers-
vested in the authority concerned…….”
33. The word “control” is also sometimes used synonyms with
superintendence, management or authority to direct, restrict or regulate by
a superior authority in exercise of its supervisory power. This Court in
The Shamrao Vithal Co-operative Bank Ltd. v. Kasargode Pandhuranga Mallya
(1972) 4 SCC 600, held that the word “control” does not comprehend within
itself the adjudication of a claim made by a co-operative society against
its members. The meaning of the word “control” has also been considered by
this Court in State of Mysore v. Allum Karibasappa & Ors. (1974) 2 SCC 498,
while interpreting Section 54 of the Mysore Cooperative Societies Act, 1959
and Court held that the word “control” suggests check, restraint or
influence and intended to regulate and hold in check and restraint from
action. The expression “control” again came up for consideration before
this Court in Madan Mohan Choudhary v. State of Bihar & Ors. (1999) 3 SCC
396, in the context of Article 235 of the Constitution and the Court held
that the expression “control” includes disciplinary control, transfer,
promotion, confirmation, including transfer of a District Judge or recall
of a District Judge posted on ex-cadre post or on deputation or on
administrative post etc. so also premature and compulsory retirement.
Reference may also be made to few other judgments of this Court reported in
Gauhati High Court and another v. Kuladhar Phukan and another (2002) 4 SCC
524, State of Haryana v. Inder Prakash Anand HCS and others (1976) 2 SCC
977, High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and
Another (1998) 3 SCC 72, Kanhaiya Lal Omar v. R.K. Trivedi and others
(1985) 4 SCC 628, TMA Pai Foundation and others v. State of Karnataka
(2002) 8 SCC 481, Ram Singh and others v. Union Territory, Chandigarh and
others (2004) 1 SCC 126, etc.
34. We are of the opinion that when we test the meaning of expression
“controlled” which figures in between the words “body owned” and
“substantially financed”, the control by the appropriate government must be
a control of a substantial nature. The mere ‘supervision’ or ‘regulation’
as such by a statute or otherwise of a body would not make that body a
“public authority” within the meaning of Section 2(h)(d)(i) of the RTI Act.
In other words just like a body owned or body substantially financed by
the appropriate government, the control of the body by the appropriate
government would also be substantial and not merely supervisory or
regulatory. Powers exercised by the Registrar of Cooperative Societies and
others under the Cooperative Societies Act are only regulatory or
supervisory in nature, which will not amount to dominating or interfering
with the management or affairs of the society so as to be controlled.
Management and control are statutorily conferred on the Management
Committee or the Board of Directors of the Society by the respective
Cooperative Societies Act and not on the authorities under the Co-operative
Societies Act.
35. We are, therefore, of the view that the word “controlled” used in
Section 2(h)(d)(i) of the Act has to be understood in the context in which
it has been used vis-a-vis a body owned or substantially financed by the
appropriate government, that is the control of the body is of such a degree
which amounts to substantial control over the management and affairs of the
body.
SUBSTANTIALLY FINANCED
36. The words “substantially financed” have been used in Sections
2(h)(d)(i) & (ii), while defining the expression public authority as well
as in Section 2(a) of the Act, while defining the expression “appropriate
Government”. A body can be substantially financed, directly or indirectly
by funds provided by the appropriate Government. The expression
“substantially financed”, as such, has not been defined under the Act.
“Substantial” means “in a substantial manner so as to be substantial”. In
Palser v. Grimling (1948) 1 All ER 1, 11 (HL), while interpreting the
provisions of Section 10(1) of the Rent and Mortgage Interest Restrictions
Act, 1923, the House of Lords held that “substantial” is not the same as
“not unsubstantial” i.e. just enough to avoid the de minimis principle.
The word “substantial” literally means solid, massive etc. Legislature
has used the expression “substantially financed” in Sections 2(h)(d)(i) and
(ii) indicating that the degree of financing must be actual, existing,
positive and real to a substantial extent, not moderate, ordinary,
tolerable etc.
37. We often use the expressions “questions of law” and “substantial
questions of law” and explain that any question of law affecting the right
of parties would not by itself be a substantial question of law. In
Black's Law Dictionary (6th Edn.), the word 'substantial' is defined as 'of
real worth and importance; of considerable value; valuable. Belonging to
substance; actually existing; real: not seeming or imaginary; not illusive;
solid; true; veritable. Something worthwhile as distinguished from
something without value or merely nominal. Synonymous with material.' The
word 'substantially' has been defined to mean 'essentially; without
material qualification; in the main; in substance; materially.' In the
Shorter Oxford English Dictionary (5th Edn.), the word 'substantial' means
'of ample or considerable amount of size; sizeable, fairly large; having
solid worth or value, of real significance; sold; weighty; important,
worthwhile; of an act, measure etc. having force or effect, effective,
thorough.' The word 'substantially' has been defined to mean 'in substance;
as a substantial thing or being; essentially, intrinsically.' Therefore the
word 'substantial' is not synonymous with 'dominant' or 'majority'. It is
closer to 'material' or 'important' or 'of considerable value.'
'Substantially' is closer to 'essentially'. Both words can signify
varying degrees depending on the context.
38. Merely providing subsidiaries, grants, exemptions, privileges etc.,
as such, cannot be said to be providing funding to a substantial extent,
unless the record shows that the funding was so substantial to the body
which practically runs by such funding and but for such funding, it would
struggle to exist. The State may also float many schemes generally for
the betterment and welfare of the cooperative sector like deposit guarantee
scheme, scheme of assistance from NABARD etc., but those facilities or
assistance cannot be termed as “substantially financed” by the State
Government to bring the body within the fold of “public authority” under
Section 2(h)(d)(i) of the Act. But, there are instances, where private
educational institutions getting ninety five per cent grant-in-aid from the
appropriate government, may answer the definition of public authority under
Section 2(h)(d)(i).
NON-GOVERNMENT ORGANISATIONS:
39. The term “Non-Government Organizations” (NGO), as such, is not
defined under the Act. But, over a period of time, the expression has got
its own meaning and, it has to be seen in that context, when used in the
Act. Government used to finance substantially, several non-government
organizations, which carry on various social and welfare activities, since
those organizations sometimes carry on functions which are otherwise
governmental. Now, the question, whether an NGO has been substantially
financed or not by the appropriate Government, may be a question of fact,
to be examined by the authorities concerned under the RTI Act. Such
organization can be substantially financed either directly or indirectly by
funds provided by the appropriate Government. Government may not have any
statutory control over the NGOs, as such, still it can be established that
a particular NGO has been substantially financed directly or indirectly by
the funds provided by the appropriate Government, in such an event, that
organization will fall within the scope of Section 2(h)(d)(ii) of the RTI
Act. Consequently, even private organizations which are, though not owned
or controlled but substantially financed by the appropriate Government will
also fall within the definition of “public authority” under Section
2(h)(d)(ii) of the Act.
BURDEN TO SHOW:
40. The burden to show that a body is owned, controlled or substantially
financed or that a non-government organization is substantially financed
directly or indirectly by the funds provided by the appropriate Government
is on the applicant who seeks information or the appropriate Government and
can be examined by the State Public Information Officer, State Chief
Information Officer, State Chief Information Commission, Central Public
Information Officer etc., when the question comes up for consideration. A
body or NGO is also free to establish that it is not owned, controlled or
substantially financed directly or indirectly by the appropriate
Government.
41. Powers have been conferred on the Central Information Commissioner or
the State Information Commissioner under Section 18 of the Act to inquire
into any complaint received from any person and the reason for the refusal
to access to any information requested from a body owned, controlled or
substantially financed, or a non-government organization substantially
financed directly or indirectly by the funds provided by the appropriate
Government. Section 19 of the Act provides for an appeal against the
decision of the Central Information Officer or the State Information
Officer to such officer who is senior in rank to the Central Information
Officer or the State Information Officer, as the case may be, in each
public authority. Therefore, there is inbuilt mechanism in the Act itself
to examine whether a body is owned, controlled or substantially financed or
an NGO is substantially financed, directly or indirectly, by funds provided
by the appropriate authority.
42. Legislative intention is clear and is discernible from Section 2(h)
that intends to include various categories, discussed earlier. It is trite
law that the primarily language employed is the determinative factor of the
legislative intention and the intention of the legislature must be found in
the words used by the legislature itself. In Magor and St. Mellons Rural
District Council v. New Port Corporation (1951) 2 All ER 839(HL) stated
that the courts are warned that they are not entitled to usurp the
legislative function under the guise of interpretation. This Court in
D.A. Venkatachalam and others v. Dy. Transport Commissioner and others
(1977) 2 SCC 273, Union of India v. Elphinstone Spinning and Weaving Co.
Ltd. and others (2001) 4 SCC 139, District Mining Officer and others v.
Tata Iron & Steel Co. and another (2001) 7 SCC 358, Padma Sundara Rao
(Dead) and others v. State of Tamil Nadu and others (2002) 3 SCC 533,
Maulvi Hussain Haji Abraham Umarji v. State of Gujarat and another (2004) 6
SCC 672 held that the court must avoid the danger of an apriori
determination of the meaning of a provision based on their own preconceived
notions of ideological structure or scheme into which the provisions to be
interpreted is somehow fitted. It is trite law that words of a statute
are clear, plain and unambiguous i.e. they are reasonably susceptible to
only one meaning, the courts are bound to give effect to that meaning
irrespective of the consequences, meaning thereby when the language is
clear and unambiguous and admits of only one meaning, no question of
construction of a statute arises, for the statute speaks for itself. This
Court in Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907 held that
“if the words used are capable of one construction only then it would not
be open to courts to adopt any other hypothetical construction on the
ground that such construction is more consistent with the alleged object
and policy of the Act.”
43. We are of the view that the High Court has given a complete go-bye to
the above-mentioned statutory principles and gone at a tangent by mis-
interpreting the meaning and content of Section 2(h) of the RTI Act. Court
has given a liberal construction to expression “public authority” under
Section 2(h) of the Act, bearing in mind the “transformation of law” and
its “ultimate object” i.e. to achieve “transparency and accountability”,
which according to the court could alone advance the objective of the Act.
Further, the High Court has also opined that RTI Act will certainly help as
a protection against the mismanagement of the society by the managing
committee and the society’s liabilities and that vigilant members of the
public body by obtaining information through the RTI Act, will be able to
detect and prevent mismanagement in time. In our view, the categories
mentioned in Section 2(h) of the Act exhaust themselves, hence, there is no
question of adopting a liberal construction to the expression “public
authority” to bring in other categories into its fold, which do not satisfy
the tests we have laid down. Court cannot, when language is clear and
unambiguous, adopt such a construction which, according to the Court, would
only advance the objective of the Act. We are also aware of the opening
part of the definition clause which states “unless the context otherwise
requires”. No materials have been made available to show that the
cooperative societies, with which we are concerned, in the context of the
Act, would fall within the definition of Section 2(h) of the Act.
Right to Information and the Right to Privacy
44. People’s right to have access to an official information finds place
in Resolution 59(1) of the UN General Assembly held in 1946. It states
that freedom of information is a fundamental human right and the touchstone
to all the freedoms to which the United Nations is consecrated. India is
a party to the International Covenant on Civil and Political Rights and
hence India is under an obligation to effectively guarantee the right to
information. Article 19 of the Universal Declaration of Human Rights also
recognizes right to information. Right to information also emanates from
the fundamental right guaranteed to citizens under Article 19(1)(a) of the
Constitution of India. Constitution of India does not explicitly grant a
right to information. In Bennet Coleman & Co. and others Vs. Union of
India and others (1972) 2 SCC 788, this Court observed that it is
indisputable that by “Freedom of Press” meant the right of all citizens to
speak, publish and express their views and freedom of speech and expression
includes within its compass the right of all citizens to read and be
informed. In Union of India Vs. Association of Democratic Reforms and
another (2002) 5 SCC 294, this Court held that the right to know about the
antecedents including criminal past of the candidates contesting the
election for Parliament and State Assembly is a very important and basic
facets for survival of democracy and for this purpose, information about
the candidates to be selected must be disclosed. In State of U.P. Vs. Raj
Narain and others (1975) 4 SCC 428, this Court recognized that the right to
know is the right that flows from the right of freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution. In
People’s Union for Civil Liberties (PUCL) and others Vs. Union of India and
another (2003) 4 SCC 399, this Court observed that the right to information
is a facet of freedom of speech and expression contained in Article
19(1)(a) of the Constitution of India. Right to information thus
indisputably is a fundamental right, so held in several judgments of this
Court, which calls for no further elucidation.
45. The Right to Information Act, 2005 is an Act which provides for
setting up the practical regime of right to information for citizens to
secure access to information under the control of public authorities in
order to promote transparency and accountability in the working of every
public authority. Preamble of the Act also states that the democracy
requires an informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to hold
Governments and their instrumentalities accountable to the governed.
Citizens have, however, the right to secure access to information of only
those matters which are “under the control of public authorities”, the
purpose is to hold “Government and its instrumentalities” accountable to
the governed. Consequently, though right to get information is a
fundamental right guaranteed under Article 19(1)(a) of the Constitution,
limits are being prescribed under the Act itself, which are reasonable
restrictions within the meaning of Article 19(2) of the Constitution of
India.
46. Right to privacy is also not expressly guaranteed under the
Constitution of India. However, the Privacy Bill, 2011 to provide for the
right to privacy to citizens of India and to regulate the collection,
maintenance and dissemination of their personal information and for
penalization for violation of such rights and matters connected therewith,
is pending. In several judgments including Kharak Singh Vs. State of
U.P. and others AIR 1963 SC 1295, R. Rajagopal alias R.R. Gopal and another
Vs. State of Tamil Nadu and others (1994) 6 SCC 632, People’s Union for
Civil Liberties (PUCL) Vs. Union of India and another (1997) 1 SCC 301 and
State of Maharashtra Vs. Bharat Shanti Lal Shah and others (2008) 13 SCC 5,
this Court has recognized the right to privacy as a fundamental right
emanating from Article 21 of the Constitution of India. Right to privacy
is also recognized as a basic human right under Article 12 of the Universal
Declaration of Human Rights Act, 1948, which states as follows:
“No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, not to attack upon his honour and
reputation. Everyone has the right to the protection of law against
such interference or attacks.”
Article 17 of the International Covenant on Civil and Political Rights Act,
1966, to which India is a party also protects that right and states as
follows:
“No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home and correspondence nor to unlawful attacks
on his honour and reputation….”
This Court in R. Rajagopal (supra) held as follows :-
“The right to privacy is implicit in the right to life and liberty
guaranteed to the citizens of this country by Article 21. It is a
“right to be let alone”. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood,
child bearing and education among other matters.”
Restrictions and Limitations:
47. Right to information and Right to privacy are, therefore, not
absolute rights, both the rights, one of which falls under Article 19(1)(a)
and the other under Article 21 of the Constitution of India, can obviously
be regulated, restricted and curtailed in the larger public interest.
Absolute or uncontrolled individual rights do not and cannot exist in any
modern State. Citizens’ right to get information is statutorily recognized
by the RTI Act, but at the same time limitations are also provided in the
Act itself, which is discernible from the Preamble and other provisions of
the Act. First of all, the scope and ambit of the expression “public
authority” has been restricted by a statutory definition under Section 2(h)
limiting it to the categories mentioned therein which exhaust itself,
unless the context otherwise requires. Citizens, as already indicated by
us, have a right to get information, but can have access only to the
information “held” and under the “control of public authorities”, with
limitations. If the information is not statutorily accessible by a public
authority, as defined in Section 2(h) of the Act, evidently, those
information will not be under the “control of the public authority”.
Resultantly, it will not be possible for the citizens to secure access to
those information which are not under the control of the public authority.
Citizens, in that event, can always claim a right to privacy, the right of
a citizen to access information should be respected, so also a citizen’s
right to privacy.
48. Public authority also is not legally obliged to give or provide
information even if it is held, or under its control, if that information
falls under clause (j) of Sub-section (1) of Section 8. Section 8(1)(j)
is of considerable importance so far as this case is concerned, hence given
below, for ready reference:-
“8. Exemption from disclosure of information – (1) Notwithstanding
anything contained in this Act, there shall be no obligation to give
any citizen –
(a) to (i) xxx xxx xxx
(j) information which relates to personal information the disclosure
of which has no relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest justifies the
disclosure of such information: Provided that the information which
cannot be denied to the Parliament or a State Legislature shall not be
denied to any person.”
49. Section 8 begins with a non obstante clause, which gives that Section
an overriding effect, in case of conflict, over the other provisions of the
Act. Even if, there is any indication to the contrary, still there is no
obligation on the public authority to give information to any citizen of
what has been mentioned in clauses (a) to (j). Public authority, as
already indicated, cannot access all the information from a private
individual, but only those information which he is legally obliged to pass
on to a public authority by law, and also only those information to which
the public authority can have access in accordance with law. Even those
information, if personal in nature, can be made available only subject to
the limitations provided in Section 8(j) of the RTI Act. Right to be left
alone, as propounded in Olmstead v. The United States reported in 1927
(277) US 438 is the most comprehensive of the rights and most valued by
civilized man.
50. Recognizing the fact that the right to privacy is a sacrosanct facet
of Article 21 of the Constitution, the legislation has put a lot of
safeguards to protect the rights under Section 8(j), as already indicated.
If the information sought for is personal and has no relationship with any
public activity or interest or it will not sub-serve larger public
interest, the public authority or the officer concerned is not legally
obliged to provide those information. Reference may be made to a recent
judgment of this Court in Girish Ramchandra Deshpande v. Central
Information Commissioner and others (2013) 1 SCC 212, wherein this Court
held that since there is no bona fide public interest in seeking
information, the disclosure of said information would cause unwarranted
invasion of privacy of the individual under Section 8(1)(j) of the Act.
Further, if the authority finds that information sought for can be made
available in the larger public interest, then the officer should record his
reasons in writing before providing the information, because the person
from whom information is sought for, has also a right to privacy guaranteed
under Article 21 of the Constitution.
51. We have found, on facts, that the Societies, in these appeals, are
not public authorities and, hence, not legally obliged to furnish any
information sought for by a citizen under the RTI Act. All the same, if
there is any dispute on facts as to whether a particular Society is a
public authority or not, the State Information Officer can examine the same
and find out whether the Society in question satisfies the test laid in
this judgment. Now, the next question is whether a citizen can have
access to any information of these Societies through the Registrar of
Cooperative Societies, who is a public authority within the meaning of
Section 2(h) of the Act.
Registrar of Cooperative Societies
52. Registrar of Cooperative Societies functioning under the Cooperative
Societies Act is a public authority within the meaning of Section 2(h) of
the Act. As a public authority, Registrar of Co-operative Societies has
been conferred with lot of statutory powers under the respective Act under
which he is functioning. He is also duty bound to comply with the
obligations under the RTI Act and furnish information to a citizen under
the RTI Act. Information which he is expected to provide is the
information enumerated in Section 2(f) of the RTI Act subject to the
limitations provided under Section 8 of the Act. Registrar can also, to
the extent law permits, gather information from a Society, on which he has
supervisory or administrative control under the Cooperative Societies Act.
Consequently, apart from the information as is available to him, under
Section 2(f), he can also gather those information from the Society, to the
extent permitted by law. Registrar is also not obliged to disclose those
information if those information fall under Section 8(1)(j) of the Act.
No provision has been brought to our knowledge indicating that, under the
Cooperative Societies Act, a Registrar can call for the details of the bank
accounts maintained by the citizens or members in a cooperative bank. Only
those information which a Registrar of Cooperative Societies can have
access under the Cooperative Societies Act from a Society could be said to
be the information which is “held” or “under the control of public
authority”. Even those information, Registrar, as already indicated, is not
legally obliged to provide if those information falls under the exempted
category mentioned in Section 8(j) of the Act. Apart from the Registrar of
Co-operative Societies, there may be other public authorities who can
access information from a Co-operative Bank of a private account maintained
by a member of Society under law, in the event of which, in a given
situation, the society will have to part with that information. But the
demand should have statutory backing.
53. Consequently, an information which has been sought for relates to
personal information, the disclosure of which has no relationship to any
public activity or interest or which would cause unwarranted invasion of
the privacy of the individual, the Registrar of Cooperative Societies, even
if he has got that information, is not bound to furnish the same to an
applicant, unless he is satisfied that the larger public interest justifies
the disclosure of such information, that too, for reasons to be recorded in
writing.
54. We, therefore, hold that the Cooperative Societies registered under
the Kerala Co-operative Societies Act will not fall within the definition
of “public authority” as defined under Section 2(h) of the RTI Act and the
State Government letter dated 5.5.2006 and the circular dated 01.06.2006
issued by the Registrar of Co-operative Societies, Kerala, to the extent,
made applicable to societies registered under the Kerala Co-operative
Societies Act would stand quashed in the absence of materials to show that
they are owned, controlled or substantially financed by the appropriate
Government. Appeals are, therefore, allowed as above, however, with no
order as to costs.
………..………………….J.
(K.S.
Radhakrishnan)
……………………………J.
(A.K. Sikri)
New Delhi,
October 07, 2013
the Kerala Co-operative Societies Act will not fall within the definition
of “public authority” as defined under Section 2(h) of the RTI Act =
whether a co-
operative society registered under the Kerala Co-operative Societies Act,
1969 (for short “the Societies Act”) will fall within the definition of
“public authority” under Section 2(h) of the Right to Information Act, 2005
(for short “the RTI Act”) and be bound by the obligations to provide
information sought for by a citizen under the RTI Act. =
We, therefore, hold that the Cooperative Societies registered under
the Kerala Co-operative Societies Act will not fall within the definition
of “public authority” as defined under Section 2(h) of the RTI Act and the
State Government letter dated 5.5.2006 and the circular dated 01.06.2006
issued by the Registrar of Co-operative Societies, Kerala, to the extent,
made applicable to societies registered under the Kerala Co-operative
Societies Act would stand quashed in the absence of materials to show that
they are owned, controlled or substantially financed by the appropriate
Government. Appeals are, therefore, allowed as above, however, with no
order as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 9017 OF 2013
(Arising out of SLP (C) No.24290 of 2012)
Thalappalam Ser. Coop. Bank
Ltd. and others Appellants
Versus
State of Kerala and others Respondents
WITH
CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013
(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797 of 2013)
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
2. We are, in these appeals, concerned with the question
whether a co-
operative society registered under the Kerala Co-operative Societies Act,
1969 (for short “the Societies Act”) will fall within the definition of
“public authority” under Section 2(h) of the Right to Information Act, 2005
(for short “the RTI Act”) and be bound by the obligations to provide
information sought for by a citizen under the RTI Act.
3. A Full Bench of the Kerala High Court, in its judgment reported in
AIR 2012 Ker 124, answered the question in the affirmative and upheld the
Circular No.23 of 2006 dated 01.06.2006, issued by the Registrar of the Co-
operative Societies, Kerala stating that all the co-operative institutions
coming under the administrative control of the Registrar, are “public
authorities” within the meaning of Section 2(h) of the RTI Act and obliged
to provide information as sought for. The question was answered by the
Full Bench in view of the conflicting views expressed by a Division Bench
of the Kerala High Court in Writ Appeal No.1688 of 2009, with an earlier
judgment of the Division Bench reported in Thalapalam Service Co-operative
Bank Ltd. v. Union of India AIR 2010 Ker 6, wherein the Bench took the
view that the question as to whether a co-operative society will fall under
Section 2(h) of the RTI Act is a question of fact, which will depend upon
the question whether it is substantially financed, directly or indirectly,
by the funds provided by the State Government which, the Court held, has to
be decided depending upon the facts situation of each case.
4. Mr. K. Padmanabhan Nair, learned senior counsel appearing for some of
the societies submitted that the views expressed by the Division Bench in
Thalapalam Service Co-operative Bank Ltd. (supra) is the correct view,
which calls for our approval. Learned senior counsel took us through the
various provisions of the Societies Act as well as of the RTI Act and
submitted that the societies are autonomous bodies and merely because the
officers functioning under the Societies Act have got supervisory control
over the societies will not make the societies public authorities within
the meaning of Section 2(h) of the RTI Act. Learned senior counsel also
submitted that these societies are not owned, controlled or substantially
financed, directly or indirectly, by the State Government. Learned senior
counsel also submitted that the societies are not statutory bodies and are
not performing any public functions and will not come within the expression
“state” within the meaning under Article 12 of the Constitution of India.
5. Mr. Ramesh Babu MR, learned counsel appearing for the State,
supported the reasoning of the impugned judgment and submitted that such a
circular was issued by the Registrar taking into consideration the larger
public interest so as to promote transparency and accountability in the
working of every co-operative society in the State of Kerala. Reference
was also made to various provisions of the Societies Act and submitted that
those provisions would indicate that the Registrar has got all pervading
control over the societies, including audit, enquiry and inspection and the
power to initiate surcharge proceedings. Power is also vested on the
Registrar under Section 32 of the Societies Act to supersede the management
of the society and to appoint an administrator. This would indicate that
though societies are body corporates, they are under the statutory control
of the Registrar of Co-operative Societies. Learned counsel submitted that
in such a situation they fall under the definition of “pubic authority”
within the meaning of Section 2(h) of the RTI Act. Shri Ajay, learned
counsel appearing for the State Information Commission, stated that the
applicability of the RTI Act cannot be excluded in terms of the clear
provision of the Act and they are to be interpreted to achieve the object
and purpose of the Act. Learned counsel submitted that at any rate having
regard to the definition of “information” in Section 2(f) of the Act, the
access to information in relation to Societies cannot be denied to a
citizen.
Facts:
6. We may, for the disposal of these appeals, refer to the facts
pertaining to Mulloor Rural Co-operative Society Ltd. In that case, one
Sunil Kumar stated to have filed an application dated 8.5.2007 under the
RTI Act seeking particulars relating to the bank accounts of certain
members of the society, which the society did not provide. Sunil Kumar
then filed a complaint dated 6.8.2007 to the State Information Officer,
Kerala who, in turn, addressed a letter dated 14.11.2007 to the Society
stating that application filed by Sunil Kumar was left unattended.
Society, then, vide letter dated 24.11.2007 informed the applicant that the
information sought for is “confidential in nature” and one warranting
“commercial confidence”. Further, it was also pointed out that the
disclosure of the information has no relationship to any “public activity”
and held by the society in a “fiduciary capacity”. Society was, however,
served with an order dated 16.1.2008 by the State Information Commission,
Kerala, stating that the Society has violated the mandatory provisions of
Section 7(1) of the RTI Act rendering themselves liable to be punished
under Section 20 of the Act. State Information Officer is purported to
have relied upon a circular No.23/2006 dated 01.06.2006 issued by the
Registrar, Co-operative Societies bringing in all societies under the
administrative control of the Registrar of Co-operative Societies, as
“public authorities” under Section 2(h) of the RTI Act.
7. Mulloor Co-operative Society then filed Writ Petition No.3351 of 2008
challenging the order dated 16.1.2008, which was heard by a learned Single
Judge of the High Court along with other writ petitions. All the petitions
were disposed of by a common judgment dated 03.04.2009 holding that all co-
operative societies registered under the Societies Act are public
authorities for the purpose of the RTI Act and are bound to act in
conformity with the obligations in Chapter 11 of the Act and amenable to
the jurisdiction of the State Information Commission. The Society then
preferred Writ Appeal No.1688 of 2009. While that appeal was pending, few
other appeals including WA No.1417 of 2009, filed against the common
judgment of the learned Single Judge dated 03.04.2009 came up for
consideration before another Division Bench of the High Court which set
aside the judgment of the learned Single Judge dated 03.04.2009, the
judgment of which is reported in AIR 2010 Ker 6. The Bench held that the
obedience to Circular No.23 dated 1.6.2006 is optional in the sense that if
the Society feels that it satisfies the definition of Section 2(h), it can
appoint an Information Officer under the RTI Act or else the State
Information Commissioner will decide when the matter reaches before him,
after examining the question whether the Society is substantially financed,
directly or indirectly, by the funds provided by the State Government. The
Division Bench, therefore, held that the question whether the Society is a
public authority or not under Section 2(h) is a disputed question of fact
which has to be resolved by the authorities under the RTI Act.
8. Writ Appeal No.1688 of 2009 later came up before another Division
Bench, the Bench expressed some reservations about the views expressed by
the earlier Division Bench in Writ Appeal No.1417 of 2009 and vide its
order dated 24.3.2011 referred the matter to a Full Bench, to examine the
question whether co-operative societies registered under the Societies Act
are generally covered under the definition of Section 2(h) of the RTI Act.
The Full Bench answered the question in the affirmative giving a liberal
construction of the words “public authority”, bearing in mind the
“transformation of law” which, according to the Full Bench, is to achieve
transparency and accountability with regard to affairs of a public body.
9. We notice, the issue raised in these appeals is of considerable
importance and may have impact on similar other Societies registered under
the various State enactments across the country.
10. The State of Kerala has issued a letter dated 5.5.2006 to the
Registrar of Co-operative Societies, Kerala with reference to the RTI Act,
which led to the issuance of Circular No.23/2006 dated 01.06.2006, which
reads as under:
“G1/40332/05
Registrar of Co-operative Societies,
Thiruvananthapuram, Dated 01.06.2006
Circular No.23/2006
Sub: Right to Information Act, 2005- Co-operative Institutions included in
the definition of “Public Authority”
Ref: Governments Letter No.3159/P.S.1/06
Dated 05.05.2006
According to Right to Information Act, 2005, sub-section (1) and (2) of
Section 5 of the Act severy public authority within 100 days of the
enactment of this Act designate as many officers as public information
officers as may be necessary to provide information to persons requesting
for information under the Act. In this Act Section 2(h) defines
institutions which come under the definition of public authority. As per
the reference letter the government informed that, according to Section
2(h) of the Act all institutions formed by laws made by state legislature
is a “public authority” and therefore all co-operative institutions coming
under the administrative control of The Registrar of co-operative societies
are also public authorities.
In the above circumstance the following directions are issued:
1. All co-operative institutions coming under the administrative control of
the Registrar of co-operative societies are “public authorities” under
the Right to Information Act, 2005 (central law No.22 of 2005). Co-
operative institutions are bound to give all information to applications
under the RTI Act, if not given they will be subjected to punishment
under the Act. For this all co-operative societies should appoint public
information/assistant public information officers immediately and this
should be published in the government website.
2. For giving information for applicants government order
No.8026/05/government administration department act and rule can be
applicable and 10 rupees can be charged as fees for each application.
Also as per GAD Act and rule and the government Order No.2383/06 dated
01.04.2006.
3. Details of Right to Information Act are available in the government
website (www.kerala.gov.in..... ) or right to information gov.in ) other
details regarding the Act are also available in the government website.
4. Hereafter application for information from co-operative institutions
need not be accepted by the information officers of this department. But
if they get such applications it should be given back showing the reasons
or should be forwarded to the respective co-operative institutions with
necessary directions and the applicant should be informed about this. In
this case it is directed to follow the time limit strictly.
5. It is directed that all joint registrars/assistant registrars should
take immediate steps to bring this to the urgent notice of all co-
operative institutions. They should inform to this office the steps
taken within one week. The Government Order No.2389/06 dated 01.04.2006
is also enclosed.
Sd/-
V. Reghunath
Registrar of co-operative societies (in charge)”
11. The State Government, it is seen, vide its letter dated 5.5.2006 has
informed the Registrar of Co-operative Societies that, as per Section 2(h)
of the Act, all institutions formed by laws made by State Legislature is a
“public authority” and, therefore, all co-operative institutions coming
under the administrative control of the Registrar of Co-operative Societies
are also public authorities.
12. We are in these appeals concerned only with the co-operative
societies registered or deemed to be registered under the Co-operative
Societies Act, which are not owned, controlled or substantially financed by
the State or Central Government or formed, established or constituted by
law made by Parliament or State Legislature.
Co-operative Societies and Article 12 of the Constitution:
13. We may first examine, whether the Co-operative Societies, with which
we are concerned, will fall within the expression “State” within the
meaning of Article 12 of the Constitution of India and, hence subject to
all constitutional limitations as enshrined in Part III of the
Constitution. This Court in U.P. State Co-operative Land Development Bank
Limited v. Chandra Bhan Dubey and others (1999) 1 SCC 741, while dealing
with the question of the maintainability of the writ petition against the
U.P. State Co-operative Development Bank Limited held the same as an
instrumentality of the State and an authority mentioned in Article 12 of
the Constitution. On facts, the Court noticed that the control of the
State Government on the Bank is all pervasive and that the affairs of the
Bank are controlled by the State Government though it is functioning as a
co-operative society, it is an extended arm of the State and thus an
instrumentality of the State or authority as mentioned under Article 12 of
the Constitution. In All India Sainik Schools employees’ Association v.
Defence Minister-cum-Chairman Board of Governors, Sainik Schools Society,
New Delhi and others (1989) Supplement 1 SCC 205, this Court held that the
Sainik School society is “State” within the meaning of Article 12 of the
Constitution after having found that the entire funding is by the State
Government and by the Central Government and the overall control vests in
the governmental authority and the main object of the society is to run
schools and prepare students for the purpose feeding the National Defence
Academy.
14. This Court in Executive Committee of Vaish Degree College, Shamli and
Others v. Lakshmi Narain and Others (1976) 2 SCC 58, while dealing with
the status of the Executive Committee of a Degree College registered under
the Co-operative Societies Act, held as follows:
“10………It seems to us that before an institution can be a statutory
body it must be created by or under the statute and owe its existence
to a statute. This must be the primary thing which has got to be
established. Here a distinction must be made between an institution
which is not created by or under a statute but is governed by certain
statutory provisions for the proper maintenance and administration of
the institution. There have been a number of institutions which
though not created by or under any statute have adopted certain
statutory provisions, but that by itself is not, in our opinion,
sufficient to clothe the institution with a statutory character……….”
15. We can, therefore, draw a clear distinction between a body which is
created by a Statute and a body which, after having come into existence, is
governed in accordance with the provisions of a Statute. Societies, with
which we are concerned, fall under the later category that is governed by
the Societies Act and are not statutory bodies, but only body corporate
within the meaning of Section 9 of the Kerala Co-operative Societies Act
having perpetual succession and common seal and hence have the power to
hold property, enter into contract, institute and defend suites and other
legal proceedings and to do all things necessary for the purpose, for which
it was constituted. Section 27 of the Societies Act categorically states
that the final authority of a society vests in the general body of its
members and every society is managed by the managing committee constituted
in terms of the bye-laws as provided under Section 28 of the Societies Act.
Final authority so far as such types of Societies are concerned, as
Statute says, is the general body and not the Registrar of Cooperative
Societies or State Government.
16. This Court in Federal Bank Ltd. v. Sagar Thomas and Others (2003) 10
SCC 733, held as follows:
“32. Merely because Reserve Bank of India lays the banking
policy in the interest of the banking system or in the interest of
monetary stability or sound economic growth having due regard to the
interests of the depositors etc. as provided under Section 5(c)(a) of
the Banking Regulation Act does not mean that the private companies
carrying on the business or commercial activity of banking, discharge
any public function or public duty. These are all regulatory measures
applicable to those carrying on commercial activity in banking and
these companies are to act according to these provisions failing which
certain consequences follow as indicated in the Act itself. As to the
provision regarding acquisition of a banking company by the
Government, it may be pointed out that any private property can be
acquired by the Government in public interest. It is now a judicially
accepted norm that private interest has to give way to the public
interest. If a private property is acquired in public interest it does
not mean that the party whose property is acquired is performing or
discharging any function or duty of public character though it would
be so for the acquiring authority”.
17. Societies are, of course, subject to the control of the statutory
authorities like Registrar, Joint Registrar, the Government, etc. but
cannot be said that the State exercises any direct or indirect control over
the affairs of the society which is deep and all pervasive. Supervisory or
general regulation under the statute over the co-operative societies, which
are body corporate does not render activities of the body so regulated as
subject to such control of the State so as to bring it within the meaning
of the “State” or instrumentality of the State. Above principle has been
approved by this Court in S.S. Rana v. Registrar, Co-operative Societies
and another (2006) 11 SCC 634. In that case this Court was dealing with
the maintainability of the writ petition against the Kangra Central Co-
operative Society Bank Limited, a society registered under the provisions
of the Himachal Pradesh Co-operative Societies Act, 1968. After examining
various provisions of the H.P. Co-operative Societies Act this Court held
as follows:
“9. It is not in dispute that the Society has not been constituted
under an Act. Its functions like any other cooperative society are
mainly regulated in terms of the provisions of the Act, except as
provided in the bye-laws of the Society. The State has no say in the
functions of the Society. Membership, acquisition of shares and all
other matters are governed by the bye-laws framed under the Act. The
terms and conditions of an officer of the cooperative society,
indisputably, are governed by the Rules. Rule 56, to which reference
has been made by Mr Vijay Kumar, does not contain any provision in
terms whereof any legal right as such is conferred upon an officer of
the Society.
10. It has not been shown before us that the State exercises any
direct or indirect control over the affairs of the Society for deep
and pervasive control. The State furthermore is not the majority
shareholder. The State has the power only to nominate one Director. It
cannot, thus, be said that the State exercises any functional control
over the affairs of the Society in the sense that the majority
Directors are nominated by the State. For arriving at the conclusion
that the State has a deep and pervasive control over the Society,
several other relevant questions are required to be considered,
namely, (1) How was the Society created? (2) Whether it enjoys any
monopoly character? (3) Do the functions of the Society partake to
statutory functions or public functions? and (4) Can it be
characterised as public authority?
11. Respondent 2, the Society does not answer any of the
aforementioned tests. In the case of a non-statutory society, the
control thereover would mean that the same satisfies the tests laid
down by this Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See
Zoroastrian Coop. Housing Society Ltd. v. Distt. Registrar, Coop.
Societies (Urban).]
12. It is well settled that general regulations under an Act, like the
Companies Act or the Cooperative Societies Act, would not render the
activities of a company or a society as subject to control of the
State. Such control in terms of the provisions of the Act are meant to
ensure proper functioning of the society and the State or statutory
authorities would have nothing to do with its day-to-day functions.”
18. We have, on facts, found that the Co-operative Societies, with which
we are concerned in these appeals, will not fall within the expression
“State” or “instrumentalities of the State” within the meaning of Article
12 of the Constitution and hence not subject to all constitutional
limitations as enshrined in Part III of the Constitution. We may, however,
come across situations where a body or organization though not a State or
instrumentality of the State, may still satisfy the definition of public
authority within the meaning of Section 2(h) of the Act, an aspect which we
may discuss in the later part of this Judgment.
Constitutional provisions and Co-operative autonomy:
19. Rights of the citizens to form co-operative societies voluntarily, is
now raised to the level of a fundamental right and State shall endeavour to
promote their autonomous functioning. The Parliament, with a view to
enhance public faith in the co-operative institutions and to insulate them
to avoidable political or bureaucratic interference brought in
Constitutional (97th Amendment) Act, 2011, which received the assent of the
President on 12.01.2012, notified in the Gazette of India on 13.01.2012 and
came into force on 15.02.2012.
20. Constitutional amendment has been effected to encourage economic
activities of co-operatives which in turn help progress of rural India.
Societies are expected not only to ensure autonomous and democratic
functioning of co-operatives, but also accountability of the management to
the members and other share stake-holders. Article 19 protects certain
rights regarding freedom of speech. By virtue of above amendment under
Article 19(1)(c) the words “co-operative societies” are added. Article
19(1)(c) reads as under:
“19(1)(c) – All citizens shall have the right to form associations or
unions or co-operative societies”.
Article 19(1)(c), therefore, guarantees the freedom to form an association,
unions and co-operative societies. Right to form a co-operative society
is, therefore, raised to the level of a fundamental right, guaranteed under
the Constitution of India. Constitutional 97th Amendment Act also inserted
a new Article 43B with reads as follows :-
“the State shall endeavour to promote voluntary formation, autonomous
functioning, democratic control and professional management of co-
operative societies”.
21. By virtue of the above-mentioned amendment, Part IX-B was also
inserted containing Articles 243ZH to 243ZT. Cooperative Societies are,
however, not treated as units of self-government, like Panchayats and
Municipalities.
22. Article 243(ZL) dealing with the supersession and suspension of board
and interim management states that notwithstanding anything contained in
any law for the time being in force, no board shall be superseded or kept
under suspension for a period exceeding six months. It provided further
that the Board of any such co-operative society shall not be superseded or
kept under suspension where there is no government shareholding or loan or
financial assistance or any guarantee by the Government. Such a
constitutional restriction has been placed after recognizing the fact that
there are co-operative societies with no government share holding or loan
or financial assistance or any guarantee by the government.
23. Co-operative society is a state subject under Entry 32 List I Seventh
Schedule to the Constitution of India. Most of the States in India enacted
their own Co-operative Societies Act with a view to provide for their
orderly development of the cooperative sector in the state to achieve the
objects of equity, social justice and economic development, as envisaged in
the Directive Principles of State Policy, enunciated in the Constitution of
India. For co-operative societies working in more than one State, The
Multi State Co-operative Societies Act, 1984 was enacted by the Parliament
under Entry 44 List I of the Seventh Schedule of the Constitution. Co-
operative society is essentially an association or an association of
persons who have come together for a common purpose of economic development
or for mutual help.
Right to Information Act
24. The RTI Act is an Act enacted to provide for citizens to secure,
access to information under the control of public authorities and to
promote transparency and accountability in the working of every public
authority. The preamble of the Act reads as follows:
“An Act to provide for setting out the practical regime of right
to information for citizens to secure access to information under the
control of public authorities, in order to promote transparency and
accountability in the working of every public authority, the
constitution of a Central Information Commission and State Information
Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic
Republic;
AND WHEREAS democracy requires an informed citizenry and
transparency of information which are vital to its functioning and
also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is
likely to conflict with other public interests including efficient
operations of the Governments, optimum use of limited fiscal resources
and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting
interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing
certain information to citizens who desire to have it.”
25. Every public authority is also obliged to maintain all its record
duly catalogued and indexed in a manner and the form which facilitates the
right to information under this Act and ensure that all records that are
appropriate to be computerized are, within a reasonable time and subject to
availability of resources, computerized and connected through a network all
over the country on different systems so that access to such record is
facilitated. Public authority has also to carry out certain other
functions also, as provided under the Act.
26. The expression “public authority” is defined under Section 2(h) of
the RTI Act, which reads as follows:
“2. Definitions._ In this Act, unless the context otherwise requires :
(h) "public authority" means any authority or body or institution of
self-government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any—
(i) body owned, controlled or substantially financed;
ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the
appropriate Government”
27. Legislature, in its wisdom, while defining the expression “public
authority” under Section 2(h), intended to embrace only those categories,
which are specifically included, unless the context of the Act otherwise
requires. Section 2(h) has used the expressions ‘means’ and includes’.
When a word is defined to ‘mean’ something, the definition is prima facie
restrictive and where the word is defined to ‘include’ some other thing,
the definition is prima facie extensive. But when both the expressions
“means” and “includes” are used, the categories mentioned there would
exhaust themselves. Meanings of the expressions ‘means’ and ‘includes’
have been explained by this Court in Delhi Development Authority v. Bhola
Nath Sharma (Dead) by LRs and others (2011) 2 SCC 54, (in paras 25 to 28).
When such expressions are used, they may afford an exhaustive explanation
of the meaning which for the purpose of the Act, must invariably be
attached to those words and expressions.
28. Section 2(h) exhausts the categories mentioned therein. The former
part of 2(h) deals with:
(1) an authority or body of self-government established by or under the
Constitution,
(2) an authority or body or institution of self- government established
or constituted by any other law made by the Parliament,
(3) an authority or body or institution of self-government established or
constituted by any other law made by the State legislature, and
(4) an authority or body or institution of self-government established or
constituted by notification issued or order made by the appropriate
government.
29. Societies, with which we are concerned, admittedly, do not fall in
the above mentioned categories, because none of them is either a body or
institution of self-government, established or constituted under the
Constitution, by law made by the Parliament, by law made by the State
Legislature or by way of a notification issued or made by the appropriate
government. Let us now examine whether they fall in the later part of
Section 2(h) of the Act, which embraces within its fold:
(5) a body owned, controlled or substantially financed, directly or
indirectly by funds provided by the appropriate government,
(6) non-governmental organizations substantially financed directly or
indirectly by funds provided by the appropriate government.
30 The expression ‘Appropriate Government’ has also been defined under
Section 2(a) of the RTI Act, which reads as follows :
“2(a). “appropriate Government” means in relation to a public
authority which is established, constituted, owned, controlled
or substantially financed by funds provided directly or
indirectly-
i) by the Central Government or the Union territory
administration, the Central Government;
ii) by the State Government, the State Government.”
31. The RTI Act, therefore, deals with bodies which are owned, controlled
or substantially financed, directly or indirectly, by funds provided by the
appropriate government and also non-government organizations substantially
financed, directly or indirectly, by funds provided by the appropriate
government, in the event of which they may fall within the definition of
Section 2(h)(d)(i) or (ii) respectively. As already pointed out, a body,
institution or an organization, which is neither a State within the meaning
of Article 12 of the Constitution or instrumentalities, may still answer
the definition of public authority under Section 2(h)d (i) or (ii).
(a) Body owned by the appropriate government – A body owned by the
appropriate government clearly falls under Section 2(h)(d)(i) of the Act.
A body owned, means to have a good legal title to it having the ultimate
control over the affairs of that body, ownership takes in its fold control,
finance etc. Further discussion of this concept is unnecessary because,
admittedly, the societies in question are not owned by the appropriate
government.
(b) Body Controlled by the Appropriate Government
A body which is controlled by the appropriate government can fall
under the definition of public authority under Section 2h(d)(i). Let us
examine the meaning of the expression “controlled” in the context of RTI
Act and not in the context of the expression “controlled” judicially
interpreted while examining the scope of the expression “State” under
Article 12 of the Constitution or in the context of maintainability of a
writ against a body or authority under Article 226 of the Constitution of
India. The word “control” or “controlled” has not been defined in the
RTI Act, and hence, we have to understand the scope of the expression
‘controlled’ in the context of the words which exist prior and subsequent
i.e. “body owned” and “substantially financed” respectively. The meaning
of the word “control” has come up for consideration in several cases before
this Court in different contexts. In State of West Bengal and another v.
Nripendra Nath Bagchi, AIR 1966 SC 447 while interpreting the scope of
Article 235 of the Constitution of India, which confers control by the High
Court over District Courts, this Court held that the word “control”
includes the power to take disciplinary action and all other incidental or
consequential steps to effectuate this end and made the following
observations :
“The word ‘control’, as we have seen, was used for the first time in
the Constitution and it is accompanied by the word ‘vest’ which is a
strong word. It shows that the High Court is made the sole custodian
of the control over the judiciary. Control, therefore, is not merely
the power to arrange the day to day working of the court but
contemplates disciplinary jurisdiction over the presiding Judge.... In
our judgment, the control which is vested in the High Court is a
complete control subject only to the power of the Governor in the
matter of appointment (including dismissal and removal) and posting
and promotion of District Judges. Within the exercise of the control
vested in the High Court, the High Court can hold enquiries, impose
punishments other than dismissal or removal, ...”
32. The above position has been reiterated by this Court in Chief
Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others (1979) 2
SCC 34. In Corporation of the City of Nagpur Civil Lines, Nagpur and
another v. Ramchandra and others (1981) 2 SCC 714, while interpreting the
provisions of Section 59(3) of the City of Nagpur Corporation Act, 1948,
this Court held as follows :
“4. It is thus now settled by this Court that the term “control” is
of a very wide connotation and amplitude and includes a large variety
of powers which are incidental or consequential to achieve the powers-
vested in the authority concerned…….”
33. The word “control” is also sometimes used synonyms with
superintendence, management or authority to direct, restrict or regulate by
a superior authority in exercise of its supervisory power. This Court in
The Shamrao Vithal Co-operative Bank Ltd. v. Kasargode Pandhuranga Mallya
(1972) 4 SCC 600, held that the word “control” does not comprehend within
itself the adjudication of a claim made by a co-operative society against
its members. The meaning of the word “control” has also been considered by
this Court in State of Mysore v. Allum Karibasappa & Ors. (1974) 2 SCC 498,
while interpreting Section 54 of the Mysore Cooperative Societies Act, 1959
and Court held that the word “control” suggests check, restraint or
influence and intended to regulate and hold in check and restraint from
action. The expression “control” again came up for consideration before
this Court in Madan Mohan Choudhary v. State of Bihar & Ors. (1999) 3 SCC
396, in the context of Article 235 of the Constitution and the Court held
that the expression “control” includes disciplinary control, transfer,
promotion, confirmation, including transfer of a District Judge or recall
of a District Judge posted on ex-cadre post or on deputation or on
administrative post etc. so also premature and compulsory retirement.
Reference may also be made to few other judgments of this Court reported in
Gauhati High Court and another v. Kuladhar Phukan and another (2002) 4 SCC
524, State of Haryana v. Inder Prakash Anand HCS and others (1976) 2 SCC
977, High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and
Another (1998) 3 SCC 72, Kanhaiya Lal Omar v. R.K. Trivedi and others
(1985) 4 SCC 628, TMA Pai Foundation and others v. State of Karnataka
(2002) 8 SCC 481, Ram Singh and others v. Union Territory, Chandigarh and
others (2004) 1 SCC 126, etc.
34. We are of the opinion that when we test the meaning of expression
“controlled” which figures in between the words “body owned” and
“substantially financed”, the control by the appropriate government must be
a control of a substantial nature. The mere ‘supervision’ or ‘regulation’
as such by a statute or otherwise of a body would not make that body a
“public authority” within the meaning of Section 2(h)(d)(i) of the RTI Act.
In other words just like a body owned or body substantially financed by
the appropriate government, the control of the body by the appropriate
government would also be substantial and not merely supervisory or
regulatory. Powers exercised by the Registrar of Cooperative Societies and
others under the Cooperative Societies Act are only regulatory or
supervisory in nature, which will not amount to dominating or interfering
with the management or affairs of the society so as to be controlled.
Management and control are statutorily conferred on the Management
Committee or the Board of Directors of the Society by the respective
Cooperative Societies Act and not on the authorities under the Co-operative
Societies Act.
35. We are, therefore, of the view that the word “controlled” used in
Section 2(h)(d)(i) of the Act has to be understood in the context in which
it has been used vis-a-vis a body owned or substantially financed by the
appropriate government, that is the control of the body is of such a degree
which amounts to substantial control over the management and affairs of the
body.
SUBSTANTIALLY FINANCED
36. The words “substantially financed” have been used in Sections
2(h)(d)(i) & (ii), while defining the expression public authority as well
as in Section 2(a) of the Act, while defining the expression “appropriate
Government”. A body can be substantially financed, directly or indirectly
by funds provided by the appropriate Government. The expression
“substantially financed”, as such, has not been defined under the Act.
“Substantial” means “in a substantial manner so as to be substantial”. In
Palser v. Grimling (1948) 1 All ER 1, 11 (HL), while interpreting the
provisions of Section 10(1) of the Rent and Mortgage Interest Restrictions
Act, 1923, the House of Lords held that “substantial” is not the same as
“not unsubstantial” i.e. just enough to avoid the de minimis principle.
The word “substantial” literally means solid, massive etc. Legislature
has used the expression “substantially financed” in Sections 2(h)(d)(i) and
(ii) indicating that the degree of financing must be actual, existing,
positive and real to a substantial extent, not moderate, ordinary,
tolerable etc.
37. We often use the expressions “questions of law” and “substantial
questions of law” and explain that any question of law affecting the right
of parties would not by itself be a substantial question of law. In
Black's Law Dictionary (6th Edn.), the word 'substantial' is defined as 'of
real worth and importance; of considerable value; valuable. Belonging to
substance; actually existing; real: not seeming or imaginary; not illusive;
solid; true; veritable. Something worthwhile as distinguished from
something without value or merely nominal. Synonymous with material.' The
word 'substantially' has been defined to mean 'essentially; without
material qualification; in the main; in substance; materially.' In the
Shorter Oxford English Dictionary (5th Edn.), the word 'substantial' means
'of ample or considerable amount of size; sizeable, fairly large; having
solid worth or value, of real significance; sold; weighty; important,
worthwhile; of an act, measure etc. having force or effect, effective,
thorough.' The word 'substantially' has been defined to mean 'in substance;
as a substantial thing or being; essentially, intrinsically.' Therefore the
word 'substantial' is not synonymous with 'dominant' or 'majority'. It is
closer to 'material' or 'important' or 'of considerable value.'
'Substantially' is closer to 'essentially'. Both words can signify
varying degrees depending on the context.
38. Merely providing subsidiaries, grants, exemptions, privileges etc.,
as such, cannot be said to be providing funding to a substantial extent,
unless the record shows that the funding was so substantial to the body
which practically runs by such funding and but for such funding, it would
struggle to exist. The State may also float many schemes generally for
the betterment and welfare of the cooperative sector like deposit guarantee
scheme, scheme of assistance from NABARD etc., but those facilities or
assistance cannot be termed as “substantially financed” by the State
Government to bring the body within the fold of “public authority” under
Section 2(h)(d)(i) of the Act. But, there are instances, where private
educational institutions getting ninety five per cent grant-in-aid from the
appropriate government, may answer the definition of public authority under
Section 2(h)(d)(i).
NON-GOVERNMENT ORGANISATIONS:
39. The term “Non-Government Organizations” (NGO), as such, is not
defined under the Act. But, over a period of time, the expression has got
its own meaning and, it has to be seen in that context, when used in the
Act. Government used to finance substantially, several non-government
organizations, which carry on various social and welfare activities, since
those organizations sometimes carry on functions which are otherwise
governmental. Now, the question, whether an NGO has been substantially
financed or not by the appropriate Government, may be a question of fact,
to be examined by the authorities concerned under the RTI Act. Such
organization can be substantially financed either directly or indirectly by
funds provided by the appropriate Government. Government may not have any
statutory control over the NGOs, as such, still it can be established that
a particular NGO has been substantially financed directly or indirectly by
the funds provided by the appropriate Government, in such an event, that
organization will fall within the scope of Section 2(h)(d)(ii) of the RTI
Act. Consequently, even private organizations which are, though not owned
or controlled but substantially financed by the appropriate Government will
also fall within the definition of “public authority” under Section
2(h)(d)(ii) of the Act.
BURDEN TO SHOW:
40. The burden to show that a body is owned, controlled or substantially
financed or that a non-government organization is substantially financed
directly or indirectly by the funds provided by the appropriate Government
is on the applicant who seeks information or the appropriate Government and
can be examined by the State Public Information Officer, State Chief
Information Officer, State Chief Information Commission, Central Public
Information Officer etc., when the question comes up for consideration. A
body or NGO is also free to establish that it is not owned, controlled or
substantially financed directly or indirectly by the appropriate
Government.
41. Powers have been conferred on the Central Information Commissioner or
the State Information Commissioner under Section 18 of the Act to inquire
into any complaint received from any person and the reason for the refusal
to access to any information requested from a body owned, controlled or
substantially financed, or a non-government organization substantially
financed directly or indirectly by the funds provided by the appropriate
Government. Section 19 of the Act provides for an appeal against the
decision of the Central Information Officer or the State Information
Officer to such officer who is senior in rank to the Central Information
Officer or the State Information Officer, as the case may be, in each
public authority. Therefore, there is inbuilt mechanism in the Act itself
to examine whether a body is owned, controlled or substantially financed or
an NGO is substantially financed, directly or indirectly, by funds provided
by the appropriate authority.
42. Legislative intention is clear and is discernible from Section 2(h)
that intends to include various categories, discussed earlier. It is trite
law that the primarily language employed is the determinative factor of the
legislative intention and the intention of the legislature must be found in
the words used by the legislature itself. In Magor and St. Mellons Rural
District Council v. New Port Corporation (1951) 2 All ER 839(HL) stated
that the courts are warned that they are not entitled to usurp the
legislative function under the guise of interpretation. This Court in
D.A. Venkatachalam and others v. Dy. Transport Commissioner and others
(1977) 2 SCC 273, Union of India v. Elphinstone Spinning and Weaving Co.
Ltd. and others (2001) 4 SCC 139, District Mining Officer and others v.
Tata Iron & Steel Co. and another (2001) 7 SCC 358, Padma Sundara Rao
(Dead) and others v. State of Tamil Nadu and others (2002) 3 SCC 533,
Maulvi Hussain Haji Abraham Umarji v. State of Gujarat and another (2004) 6
SCC 672 held that the court must avoid the danger of an apriori
determination of the meaning of a provision based on their own preconceived
notions of ideological structure or scheme into which the provisions to be
interpreted is somehow fitted. It is trite law that words of a statute
are clear, plain and unambiguous i.e. they are reasonably susceptible to
only one meaning, the courts are bound to give effect to that meaning
irrespective of the consequences, meaning thereby when the language is
clear and unambiguous and admits of only one meaning, no question of
construction of a statute arises, for the statute speaks for itself. This
Court in Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907 held that
“if the words used are capable of one construction only then it would not
be open to courts to adopt any other hypothetical construction on the
ground that such construction is more consistent with the alleged object
and policy of the Act.”
43. We are of the view that the High Court has given a complete go-bye to
the above-mentioned statutory principles and gone at a tangent by mis-
interpreting the meaning and content of Section 2(h) of the RTI Act. Court
has given a liberal construction to expression “public authority” under
Section 2(h) of the Act, bearing in mind the “transformation of law” and
its “ultimate object” i.e. to achieve “transparency and accountability”,
which according to the court could alone advance the objective of the Act.
Further, the High Court has also opined that RTI Act will certainly help as
a protection against the mismanagement of the society by the managing
committee and the society’s liabilities and that vigilant members of the
public body by obtaining information through the RTI Act, will be able to
detect and prevent mismanagement in time. In our view, the categories
mentioned in Section 2(h) of the Act exhaust themselves, hence, there is no
question of adopting a liberal construction to the expression “public
authority” to bring in other categories into its fold, which do not satisfy
the tests we have laid down. Court cannot, when language is clear and
unambiguous, adopt such a construction which, according to the Court, would
only advance the objective of the Act. We are also aware of the opening
part of the definition clause which states “unless the context otherwise
requires”. No materials have been made available to show that the
cooperative societies, with which we are concerned, in the context of the
Act, would fall within the definition of Section 2(h) of the Act.
Right to Information and the Right to Privacy
44. People’s right to have access to an official information finds place
in Resolution 59(1) of the UN General Assembly held in 1946. It states
that freedom of information is a fundamental human right and the touchstone
to all the freedoms to which the United Nations is consecrated. India is
a party to the International Covenant on Civil and Political Rights and
hence India is under an obligation to effectively guarantee the right to
information. Article 19 of the Universal Declaration of Human Rights also
recognizes right to information. Right to information also emanates from
the fundamental right guaranteed to citizens under Article 19(1)(a) of the
Constitution of India. Constitution of India does not explicitly grant a
right to information. In Bennet Coleman & Co. and others Vs. Union of
India and others (1972) 2 SCC 788, this Court observed that it is
indisputable that by “Freedom of Press” meant the right of all citizens to
speak, publish and express their views and freedom of speech and expression
includes within its compass the right of all citizens to read and be
informed. In Union of India Vs. Association of Democratic Reforms and
another (2002) 5 SCC 294, this Court held that the right to know about the
antecedents including criminal past of the candidates contesting the
election for Parliament and State Assembly is a very important and basic
facets for survival of democracy and for this purpose, information about
the candidates to be selected must be disclosed. In State of U.P. Vs. Raj
Narain and others (1975) 4 SCC 428, this Court recognized that the right to
know is the right that flows from the right of freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution. In
People’s Union for Civil Liberties (PUCL) and others Vs. Union of India and
another (2003) 4 SCC 399, this Court observed that the right to information
is a facet of freedom of speech and expression contained in Article
19(1)(a) of the Constitution of India. Right to information thus
indisputably is a fundamental right, so held in several judgments of this
Court, which calls for no further elucidation.
45. The Right to Information Act, 2005 is an Act which provides for
setting up the practical regime of right to information for citizens to
secure access to information under the control of public authorities in
order to promote transparency and accountability in the working of every
public authority. Preamble of the Act also states that the democracy
requires an informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to hold
Governments and their instrumentalities accountable to the governed.
Citizens have, however, the right to secure access to information of only
those matters which are “under the control of public authorities”, the
purpose is to hold “Government and its instrumentalities” accountable to
the governed. Consequently, though right to get information is a
fundamental right guaranteed under Article 19(1)(a) of the Constitution,
limits are being prescribed under the Act itself, which are reasonable
restrictions within the meaning of Article 19(2) of the Constitution of
India.
46. Right to privacy is also not expressly guaranteed under the
Constitution of India. However, the Privacy Bill, 2011 to provide for the
right to privacy to citizens of India and to regulate the collection,
maintenance and dissemination of their personal information and for
penalization for violation of such rights and matters connected therewith,
is pending. In several judgments including Kharak Singh Vs. State of
U.P. and others AIR 1963 SC 1295, R. Rajagopal alias R.R. Gopal and another
Vs. State of Tamil Nadu and others (1994) 6 SCC 632, People’s Union for
Civil Liberties (PUCL) Vs. Union of India and another (1997) 1 SCC 301 and
State of Maharashtra Vs. Bharat Shanti Lal Shah and others (2008) 13 SCC 5,
this Court has recognized the right to privacy as a fundamental right
emanating from Article 21 of the Constitution of India. Right to privacy
is also recognized as a basic human right under Article 12 of the Universal
Declaration of Human Rights Act, 1948, which states as follows:
“No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, not to attack upon his honour and
reputation. Everyone has the right to the protection of law against
such interference or attacks.”
Article 17 of the International Covenant on Civil and Political Rights Act,
1966, to which India is a party also protects that right and states as
follows:
“No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home and correspondence nor to unlawful attacks
on his honour and reputation….”
This Court in R. Rajagopal (supra) held as follows :-
“The right to privacy is implicit in the right to life and liberty
guaranteed to the citizens of this country by Article 21. It is a
“right to be let alone”. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood,
child bearing and education among other matters.”
Restrictions and Limitations:
47. Right to information and Right to privacy are, therefore, not
absolute rights, both the rights, one of which falls under Article 19(1)(a)
and the other under Article 21 of the Constitution of India, can obviously
be regulated, restricted and curtailed in the larger public interest.
Absolute or uncontrolled individual rights do not and cannot exist in any
modern State. Citizens’ right to get information is statutorily recognized
by the RTI Act, but at the same time limitations are also provided in the
Act itself, which is discernible from the Preamble and other provisions of
the Act. First of all, the scope and ambit of the expression “public
authority” has been restricted by a statutory definition under Section 2(h)
limiting it to the categories mentioned therein which exhaust itself,
unless the context otherwise requires. Citizens, as already indicated by
us, have a right to get information, but can have access only to the
information “held” and under the “control of public authorities”, with
limitations. If the information is not statutorily accessible by a public
authority, as defined in Section 2(h) of the Act, evidently, those
information will not be under the “control of the public authority”.
Resultantly, it will not be possible for the citizens to secure access to
those information which are not under the control of the public authority.
Citizens, in that event, can always claim a right to privacy, the right of
a citizen to access information should be respected, so also a citizen’s
right to privacy.
48. Public authority also is not legally obliged to give or provide
information even if it is held, or under its control, if that information
falls under clause (j) of Sub-section (1) of Section 8. Section 8(1)(j)
is of considerable importance so far as this case is concerned, hence given
below, for ready reference:-
“8. Exemption from disclosure of information – (1) Notwithstanding
anything contained in this Act, there shall be no obligation to give
any citizen –
(a) to (i) xxx xxx xxx
(j) information which relates to personal information the disclosure
of which has no relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest justifies the
disclosure of such information: Provided that the information which
cannot be denied to the Parliament or a State Legislature shall not be
denied to any person.”
49. Section 8 begins with a non obstante clause, which gives that Section
an overriding effect, in case of conflict, over the other provisions of the
Act. Even if, there is any indication to the contrary, still there is no
obligation on the public authority to give information to any citizen of
what has been mentioned in clauses (a) to (j). Public authority, as
already indicated, cannot access all the information from a private
individual, but only those information which he is legally obliged to pass
on to a public authority by law, and also only those information to which
the public authority can have access in accordance with law. Even those
information, if personal in nature, can be made available only subject to
the limitations provided in Section 8(j) of the RTI Act. Right to be left
alone, as propounded in Olmstead v. The United States reported in 1927
(277) US 438 is the most comprehensive of the rights and most valued by
civilized man.
50. Recognizing the fact that the right to privacy is a sacrosanct facet
of Article 21 of the Constitution, the legislation has put a lot of
safeguards to protect the rights under Section 8(j), as already indicated.
If the information sought for is personal and has no relationship with any
public activity or interest or it will not sub-serve larger public
interest, the public authority or the officer concerned is not legally
obliged to provide those information. Reference may be made to a recent
judgment of this Court in Girish Ramchandra Deshpande v. Central
Information Commissioner and others (2013) 1 SCC 212, wherein this Court
held that since there is no bona fide public interest in seeking
information, the disclosure of said information would cause unwarranted
invasion of privacy of the individual under Section 8(1)(j) of the Act.
Further, if the authority finds that information sought for can be made
available in the larger public interest, then the officer should record his
reasons in writing before providing the information, because the person
from whom information is sought for, has also a right to privacy guaranteed
under Article 21 of the Constitution.
51. We have found, on facts, that the Societies, in these appeals, are
not public authorities and, hence, not legally obliged to furnish any
information sought for by a citizen under the RTI Act. All the same, if
there is any dispute on facts as to whether a particular Society is a
public authority or not, the State Information Officer can examine the same
and find out whether the Society in question satisfies the test laid in
this judgment. Now, the next question is whether a citizen can have
access to any information of these Societies through the Registrar of
Cooperative Societies, who is a public authority within the meaning of
Section 2(h) of the Act.
Registrar of Cooperative Societies
52. Registrar of Cooperative Societies functioning under the Cooperative
Societies Act is a public authority within the meaning of Section 2(h) of
the Act. As a public authority, Registrar of Co-operative Societies has
been conferred with lot of statutory powers under the respective Act under
which he is functioning. He is also duty bound to comply with the
obligations under the RTI Act and furnish information to a citizen under
the RTI Act. Information which he is expected to provide is the
information enumerated in Section 2(f) of the RTI Act subject to the
limitations provided under Section 8 of the Act. Registrar can also, to
the extent law permits, gather information from a Society, on which he has
supervisory or administrative control under the Cooperative Societies Act.
Consequently, apart from the information as is available to him, under
Section 2(f), he can also gather those information from the Society, to the
extent permitted by law. Registrar is also not obliged to disclose those
information if those information fall under Section 8(1)(j) of the Act.
No provision has been brought to our knowledge indicating that, under the
Cooperative Societies Act, a Registrar can call for the details of the bank
accounts maintained by the citizens or members in a cooperative bank. Only
those information which a Registrar of Cooperative Societies can have
access under the Cooperative Societies Act from a Society could be said to
be the information which is “held” or “under the control of public
authority”. Even those information, Registrar, as already indicated, is not
legally obliged to provide if those information falls under the exempted
category mentioned in Section 8(j) of the Act. Apart from the Registrar of
Co-operative Societies, there may be other public authorities who can
access information from a Co-operative Bank of a private account maintained
by a member of Society under law, in the event of which, in a given
situation, the society will have to part with that information. But the
demand should have statutory backing.
53. Consequently, an information which has been sought for relates to
personal information, the disclosure of which has no relationship to any
public activity or interest or which would cause unwarranted invasion of
the privacy of the individual, the Registrar of Cooperative Societies, even
if he has got that information, is not bound to furnish the same to an
applicant, unless he is satisfied that the larger public interest justifies
the disclosure of such information, that too, for reasons to be recorded in
writing.
54. We, therefore, hold that the Cooperative Societies registered under
the Kerala Co-operative Societies Act will not fall within the definition
of “public authority” as defined under Section 2(h) of the RTI Act and the
State Government letter dated 5.5.2006 and the circular dated 01.06.2006
issued by the Registrar of Co-operative Societies, Kerala, to the extent,
made applicable to societies registered under the Kerala Co-operative
Societies Act would stand quashed in the absence of materials to show that
they are owned, controlled or substantially financed by the appropriate
Government. Appeals are, therefore, allowed as above, however, with no
order as to costs.
………..………………….J.
(K.S.
Radhakrishnan)
……………………………J.
(A.K. Sikri)
New Delhi,
October 07, 2013
