DATE OF JUDGEMENT:
7th October 2013
JUDGES:
Honourable Justice K.S. Radhakrishnan, Honourable Justice A.K. Sikri
PARTIES:
(Appellants): Thalappalam Ser. Coop. Bank Ltd. & Ors.
(Respondents): State of Kerala & Ors.
OVERVIEW
- The appeals in this case raise questions of whether a cooperative society which is registered under the Kerala cooperative societies act can fall within the definition of public authority under Section 2(h) of the Right to Information Act and will it be bounded by the obligations to provide information that a citizen seeks for under the RTI act.
- The court stated that the answer to this question will depend on the fact off weather the society is financed by the state government in a direct or an indirect manner and will differ from case to case.
- For the purpose of disposal of appeals in this case, the facts of the case of Mulloor Rural Cooperative Society Ltd. had been referred to.
- In this case Sunil Kumar had filed an application under the RTI act to obtain information regarding the bank accounts of some members of the society which the society had denied to.
- He then filed a complaint to the state information officer who sent a letter to the society mentioning that the application by Mr Sunil Kumar was left unattended. To this the society responded with a letter by stating that the information was confidential in nature.
- However the society received the letter by the State Information Commission mentioning, that they have violated provisions of the RTI act and are liable to punishment.
- This issue was later moved to the court and challenged again after the first judgement. The final judgement stated that, the societies do not fall within the definition of public authority as per the RTI act neither do they fall within the ambit of state.
- For the present case, the court has discussed every word which can be questioned within Section 2(h) of the RTI Act.
- It was also stated that information which is sought for if it is not regarding to any public activity or in the interest of the public then it will lead to the invasion of privacy and even if the registrar has information about it then they are not bound to provide the same to the applicant, if the registrar is satisfied that the disclosure of this information is necessary for the public interest then they need to record reasons for this in the form of writing.
- The judgement of the present case stated that the circular which was issued by the registrar of cooperative societies will stand quashed as there is absence of material which will indicate if they are either owned or controlled or even financed by the appropriate government in a direct or an indirect manner.
IMPORTANT PROVISIONS
Section 2(h) of the RTI Act – as per this section of the RTI Act, a public authority stands for a body or an authority or even an institution of the self government which is either established or constituted by: a) the constitution, b) any other law which is made by the parliament, c) or the state legislature, d) or an order which is issued by the appropriate government.
Article 12 of the Constitution - this article provides for the definition of state, and mentions that it includes the government and also the parliament of India, along with the legislature and government of each state, and all the local authorities which are under the control of the government.
ISSUES
- Whether Corporate Societies fall within the expression ‘State’?
- Whether Corporate Societies registered under Kerala Co-operative Societies Act will fall within the definition of public authority?
- Whether the societies will be bound by the obligation to provide information that has been sought for under the RTI Act?
JUDGEMENT ANALYSIS
1. The primary issue that we are dealing with is weather the cooperative societies with respect to this case will fall under the expression of state within the meaning of Article 12 of the Constitution, and if they will be subjected to all the Constitutional limits as it has been enshrined in part three of the Constitution. It was in the case of ‘U.P State Co-operative Land Development Bank Limited V. Chandra Bhan Dubey and Ors. ’ where it was held by the court that when a question like this which revolves around the maintainability of a writ petition is put forward, then the instrumentality of the state along with the authority that has been mentioned in Article 12 will come into picture. It was on the facts of this case that the court had noticed that the control which the state government has on the bank is pervasive and the affairs of the bank are being controlled by the state government even though it is functioning as a cooperative society, they mentioned that it is functioning like an extended arm of the state and so the instrumentality of the state or the authority will be mentioned under Article 12. In the other case of ‘All India Sainik Schools Employees' Association V. Defence Minister-cum-Chairman Board of Governers, Sainik School Society, New Delhi & Ors. ’ Where it had been held by the court that the Sainik School Society will come under the extent of state within the meaning of Article 12 as it has been found that the entire funding is being done by the state government and the central government and all the overall control rests in governmental authority. It was also mentioned that the main objective of the society is to run schools along with preparing students for the purpose of entering into the National Defence Academy. Moreover, it was in the case of ‘Executive Committee of Vaish Degree College, Shalimar and Ors. V. Lakshmi Narain and Ors. ’ where the status of the executive committee of a degree college is registered under the Co-operative Societies Act, the court held that, an institution will be considered as a statutory body if it is created by or under the statute or its existence is owned to a statue. This will stand as a primary condition but we also need to make a distinction between an institution that is not created by a statute or under a statute but it is being governed by some statutory provisions for the proper maintenance and administration of it. There have been a variety of institutions which are not created by or under any statute but they have adopted certain statutory provisions which, on its own is not sufficient to state that the institution has a statutory character. It was further stated by the court in the case of ‘Federal Bank Ltd. V. Sagar Thomas and Ors. ’ that only because Reserve Bank of India lays down the banking policy in the interest of the banking system or monetary stability or a sound economic growth with regards to the interest of the depositor’s as it has been provided under the Banking Regulation Act, will not mean that the private companies which have been carrying on the business or commercial activity of banking will have to discharge any public function or public duty. These regulatory measures will be applicable to those who have been carrying on commercial activity in the banking sector and these companies are supposed to act according to these provisions failing to which there will be consequences which have been mentioned in the act itself. When the question of acquisition of a banking company by the government is put forward then it should be pointed out that any private property can be acquired by the government for the purpose of public interest and if it has been done then it will not mean that the party whose property has been acquired is either performing or discharging a function or a duty of public character. It was in 2006, that the case of ‘S.S. Rana V. Registrar, Co-operative Societies and Anr. ’ helped in stating that it is true that societies are subjected to the control of statutory authorities like the Registrar, the Joint Registrar and the government but it does not mean that the state exercises a direct or indirect form of control over the affairs of the society which is deep and pervasive. It was also mentioned that the supervisory or general regulation under the statute over the cooperative societies does not render any activities of the body so regulated as subjected to such control of the state will bring them within the meaning of the state or the instrumentality of the state. Thus, the court finally stated that on the basis of the facts, it cannot be said that the cooperative societies concerned in these appeals will fall within the expression state or instrumentality of the state within Article 12 of the Constitution and it will also not be subjected to the Constitutional limitations as it has been mentioned in Part III of the Constitution. They however mentioned that in situations where a body or an organization which does not come under a state or the instrumentality of a state can still satisfy the definition of public authority within Section 2(h) of the act.
2. Another important question that this case deals with is the whether a cooperative society which is registered under the Kerala Cooperative Societies Act will fall within the definition of public authority under Section 2(h) of the Right to Information Act and will it be bound by the obligations to provide information which has been sought for by a citizen under the Right to Information Act. This question was answered by the court in the case of ‘Thalapalam Service Co-operative Bank Ltd. V. Union of India ' where they stated that thus question is a question of fact, and it will depend on the situation whether it is being funded in either a direct or an indirect manner by the state government and this will be decided on the facts of every individual case. The counsel appearing for the apple ends stated that according to the provisions of the Societies Act along with the RTI Act the societies stand as autonomous bodies and just because the officers were functioning under the Societies Act have some supervisory control over them, it will not make the society a public authority within the meaning of Section 2 clause h of the RTI act. It was also mentioned by the council that these societies are not a form of statutory bodies and they are not either owned or controlled or even financed by the state government, neither do they perform any public functions and hence they will not come within the expression state under Article 12. However the counsel appearing for the respondents stated that this circular was issued by the registrar in order to take into consideration the larger public interest and promote transparency and accountability in the working of the cooperative societies in the state of Kerala. He referred to the Societies Act and stated that the provisions mentioned under it indicate that the registrar has control over these societies including their audit, inquiry and inspection along with the power to initiate surcharge proceedings. He also mentioned that the registrar is empowered to supersede the management of these societies and appoint an administrator which indicates that even though these societies are body corporates they remain under the statutory control of the registrar and in such a situation fall under the definition of public authority within Section 2(h) of the RTI act. It was also mentioned that the applicability of the RTI Act cannot be excluded in terms of the clear provision of the act and the interpretation should be made in a manner to achieve the object and the purpose of the Act, it was also mentioned that the access to information shouldn’t be denied to the citizens by the societies. The court further mentioned that the societies which we are talking about in the present case do not fall in the categories which have been mentioned under Section 2(h) as they are not a body or institution of the self government and are not established or constituted under the organisation or made by law by the parliament or even the state legislature or by a notification which has been issued by the appropriate government. as far as the later part of Section 2 clause (h) is concerned it was stated that the cooperative societies which are registered under the Kerala cooperative societies act will not fall within the definition of public authority as it has been made applicable that the society is registered under the Kerala cooperative societies act will stand quashed because of the absence of materials which show that they are either owned or controlled or even financed by the appropriate government in a direct or an indirect manner.
3. Another crucial question which was raised in this case was that, whether the societies are bound by the obligation to provide information that has been sought for under the Right to Information Act. When we talk about this issue there is more to it especially in terms of the Right to Privacy. The right of the people to have access to an official information stands as a provision under the UN General Assembly and it states that the Freedom of Information is a fundamental human right and because, India is a party to the international covenant on civil and political rights it is bound by this obligation. The Right to Information is provided to the citizens of our country by Article 19 in the Constitution, it does not grant a Right to Information in an explicit form. The Right to Information Act provides for setting up a practical regime of right to information to the citizens so that they have a secured form of access to information which is under the control of public authorities in order to make sure that there is transparency and accountability in the work of every public authority. The citizens of our country are entitled to the right to secure access to information of only those matters which are under the control of public authorities and the purpose of it is to hold the government and its instrumentalities accountable. Even though this right stands is a fundamental right which is guaranteed to us by the Constitution there is no denying to the fact that there are reasonable restrictions imposed on it which are also mentioned under the same Article in the Constitution. The Right to Privacy might not be guaranteed under the Constitution in an explicit manner, however, there are a variety of cases including ‘Kharak Singh V. State of U.P. and Ors. ’ , ‘R. Rajagopal alias R.R. Gopal and Anr. V. State of Tamil Nadu and Ors. ’, and ‘PUCL V. Union of India and Anr. ’ where the Right to Privacy has been recognised by the court as a fundamental right emanating from Article 21 of the Constitution. Our legislature recognises the fact that the right to privacy is a facet of Article 21 and provides a variety of safeguards to protect it. This is why when information which is sought for is of a personal nature and is not related with any public activity or interest or does not serve to a larger public interest then the public authority who is concerned is not legally obliged to provide this information, this was also mentioned in the case of ‘Girish Ramchandra Deshpande V. Central Information Commissioner and Ors. ’. The court also stated that in places where there is no good of the public interest where information is being sick then the disclosure of this information will result in an invasion of privacy of the individual. If in case the authority is able to find that the information which is being sought for can be made available in the larger public interest then they need to record the reasons in the form of writing before they provide the information so that the individual whose information is being provided has their right to privacy maintained. In their judgement of the present case the court stated that the societies are not public authorities and they are not obliged to furnish any information which is seek by a citizen under the Right to Information Act. The court also mentioned that there is no provision under the cooperative societies act under which a registrar can call for the details of the bank accounts which are maintained by the citizens or the members in a cooperative bank. They mentioned that the only information that a registrar can have access to will be the information which is held or is under the control of the public authority. At the end it was stated that a piece of information which has been sought for if it is related to some personal information and its disclosure has no relation to any public activity or interest then it will result in the invasion of privacy of the individual and even if the registrar obtains this information then they are not bound to furnish it to the applicant unless the registrar is satisfied that the larger public interest is justified by the disclosure of this information and even for this the reasons have to be recorded in the form of writing.
CONCLUSION
One of the most beautiful parts of the legal system of our country is that it ensures that no individual at any point of time feels that they have been wronged against and there is no solution to it. Even when it comes to the power that is granted to the authorities or the government itself every individual has a right to question them and hold them accountable for their actions, reasonable restrictions are obviously there in order to avoid any misuse of this freedom. this case help us in seeing that the quotes pulled the power to question the authorities and even correct their actions if they commit any wrong, it also enlightened us which the power that we hold of raising questions and gaining full information about actions or orders which are said to be made in the favour of the public. As far as this is concerned the brilliance of our constitution is unmatched because while it ensures that an individual gets the information they seek it also helps us to make sure that the privacy of no individual is being invaded and even if actions are taken which are deemed to be necessary at that point of time there has to be statements in writing which ensure that no injustice is being done. This gives it a very brilliant example of the fact that just because officers have supervisory authority over societies they cannot claim that these societies will come within the ambit of state or even public authority as far as the law is concerned and especially in terms of the Right to Information Act.
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