Supreme Court of India
THALAPPALAM SER. COOP. BANK LTD. AND ORS.versusSTATE OF KERALA AND ORS.
- Citation
- 2013 INSC 684
- Decided
- 7 October 2013
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
Co‑operative societies registered under the Kerala Co‑operative Societies Act are not "public authorities" under Section 2(h) of the Right to Information Act, 2005.
Summary
The Supreme Court examined whether cooperative societies registered under the Kerala Co-operative Societies Act, 1969 are "public authorities" under Section 2(h) of the Right to Information Act, 2005 and thus bound to disclose information. The Court distinguished statutory bodies from bodies merely governed by statutes, noting that such societies are body‑corporates whose final authority rests with their members, not the State. It held that the societies are not owned, controlled, or substantially financed by the appropriate Government, and the regulatory supervision by the Registrar does not amount to the substantial control contemplated by the Act. Consequently, the societies do not fall within the definition of public authority and are not obligated to provide information under the RTI Act. The Court also affirmed that the Registrar of Co‑operative Societies is a public authority, but the societies themselves are not. The appeals were allowed and the circular and state letter treating the societies as public authorities were quashed.
Issues considered
- The definition of "public authority" under Section 2(h) of the Right to Information Act, 2005 and its applicability to cooperative societies registered under the Kerala Co‑operative Societies Act.
- Whether the control exercised by the Registrar of Co‑operative Societies constitutes the "substantial control" required by the RTI Act.
- The meaning of "owned", "controlled" and "substantially financed" in the context of the RTI Act.
- Whether cooperative societies fall within the meaning of "State" or "instrumentality of the State" under Article 12 of the Constitution.
Legislation cited
- 97th Constitutional Amendment Act, 2011
- Constitution of Indias. Art.12, s. Art.19(1)(a), s. Art.19(2), s. Art.21, s. Art.243ZH, s. Art.43B
- Kerala Co-operative Societies Act, 1969s. 27, s. 28, s. 9
- Right to Information Act, 2005s. 18, s. 19, s. 20, s. 2(a), s. 2(b), s. 2(f), s. 2(h), s. 8
Subjects
Right to Information Actpublic authorityco‑operative societiesinterpretation of statutescontrolsubstantially financedArticle 12Article 19Article 21privacytransparencyaccountability
Judgment
[2013] 14 S.C.R. 475
THALAPPALAM SER. COOP. BANK LTD. AND ORS. A
v.
STATE OF KERALA AND ORS.
{Civil Appeal No. 9017 of 2013)
OCTOBER 07, 2013
B
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Right to Information Act, 2005:
s. 2(b) - 'Public authority' - Whether includes Co- c
operative Societies registered under Kera/a Co-operative
Societies Act, and hence whether such society bound to
provide information sought under the RT/ Act - Held: The
definition of 'public authority' under RT/ Act includes the
bodies which are owned, controlled or substantially financed, D
directly or indirectly, by funds provided by the appropriate
Government and also by Non-Government Organizations
(which are substantially financed, directly or indirectly, by
funds provided by the appropriate Government) - The co-
operative societies in question, will not fall within the definition E
of 'public authority' as defined u/s. 2(h), as they are not owned,
controlled or substantially financed by the appropriate
Government - Kera/a Co-operative Societies Act, 1969.
s. 2(h) - 'Public authority' - Connotation of - Held:
Bodies which are owned, controlled or substantially financed, F
cfirectly or indirectly, by funds provided py the appropriate
government and also by Non-Government Organizations
(substantially financed, directly or indirectly by funds provided
by the appropriate Government) - A body, institution or an
organization, which is neither a State (within the meaning of G
Art. 12 of the Constitution) nor its instrumentalities, may still
answer the definition of 'public authority'.
Interpretation of Statutes -Legislative intent -
475 H
476 SUPREME COURT REPORTS [2013] 14 S.C.R.
A Asc3rtainment of - Primarily the language employed is the
determinative factor of the legislative intention - If the words
of a statute are clear, plain and unambiguous and susceptible
to only one meaning, the Court is bound to give effect to that
mEianing irrespective of the consequences - Courts are not
B entitled to usurp the legislative function under the guise of
interpretation.
Rights - 'Right to information' vis-a-vis' right to privacy' -
Discussed - Constitution of India, 1950 - Articles 19(1)(a),
C 1f1(2) and 21.
Words and Phrases:
'Co-operative Society' - Connotation of.
Means' and 'Includes' - Connotation of - When a word
D is defined to 'mean' something, the definition is prima facie
rEistrictive - Where the word is defined to 'include' some other
thing, the definition is prima facie extensive - But where both
tl1e expressions 'means' and 'includes' are used, the
categories mentioned there would exhaust themselves.
E
'Control' - Connotation of, in the context of s. 2(h)(d)(i)
of Right to Information Act, 2005.
'Substantial' and 'substantially financed' - Meaning of, in
F t.he context of s. 2(h)(d)(i) and (ii) of Right to Information Act,
~W05.
The question for consideration in the present
appeals was whether a co-operative society registered
under the Kerala Co-operative Societies Act, 1969 will fall
G within the definition of "public authority" under Section
2(h) of the Right to Information Act, 2005 (RTI Act)and be
bound by the obligations to provide information sought
for by a citizen under the RTI Act.
H Allowing the appeals, the Court
THALAPPALAM SER. COOP. BANK LTD. v. STATE 477
OF KERALA
HELD: 1.1. A clear distinction can be drawn between A
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. The Societies
in question , fall under the later category, that is governed
by the Societies Act and are not statutory bodies, but B
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
suits and other legal proceedings and to do all things c
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 0
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 Co-operative Societies or State Government. [Para 15]
[500-D-H]
E
Executive Committee of Vaish Degree College, Shamli
and Ors. vs. Lakshmi Narain and Ors. (1976) 2 SCC 58: 1976
(2) SCR 1006 - relied on.
Federal Bank Ltd. vs. Sagar Thomas and Ors. (2003) 10 F
SCC 733: 2003.(4) Suppl. SCR 121; U.P. State Co-operative
Land Development Bank Limited vs. Chandra Bhan Dubey
and Ors. (1999) 1 SCC 741: 1998 (3) Suppl. SCR 659; All
India Sainik Schools employees' Association vs. Defence
Minister-cum-Chairman Board of Governors, Sainik Schools G
Society, New Delhi and Ors. (1989) Supplement 1 SCC 205:
1988 (3) Suppl. SCR 398 - referred to.
1.2. 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 H
4"78 SUPREME COURT REPORTS [2013] 14 S.C.R.
A exercises any direct or indirect control over the affairs of
the society which is deep and all pervasive. Supervisory
or general regulation urider the statute over the co-
operative societies, which are body corporate does not
render activities of the body so regulated as subject to
B s,uch control of the State so as to bring it within the
meaning of the "State" or instrumentality of the State.
[Para 17) [501-F-G)
S.S. Rana vs. Registrar, Co-operative Societies and Anr.
c (2006) 11 sec 634: 2006 (1) Suppl. SCR 311 - relied on.
1.3. On facts, the Co-operative Societies, in the
present 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
D subject to all constitutional limitations as enshrined in
Part Ill of the Constitution. There may be 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
E the Act. [Para 18) [503-D-E]
1.4. 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
F 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. [Para 19) [503-G]
G 1.5. 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
H management to the members and other share stake-
THALAPPALAM SER. COOP. BANK LTD. v. STATE 479
OF KERALA
holders. Article 19 protects certain rights regarding A
freedom of speech. By virtue of above amendment under
Article 19('1 )(c) the words "co-operative societies" are
added. Article 19(1)(c), therefore, guarantees the freedom
to form an association, unions and col~operative
societies. Rig ht to form a co-operative. society is, B
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. By
virtue of the above-mentioned amendment, Part IX-B was
also inserted containing Articles 243ZH to 243ZT. c
Coope,rative Societies are, however, not treated as units
of self-government, like Panchayats and Municipalities.
[Paras 20 & 21] [504-A-F] ··
1.6. Article 243(ZL) dealing with the supersession and
suspension of board and interim management states that D
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 E
suspension where there is no government shareh~lding
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 F
loan or financial assistance or any guarantee by the
government. [Para 22] [504-F-H; 505-A]
1.7. Co-operative society is a state subject under
Entry 32 List I Seventh Schedule to the Constitution of G
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
H
480 SUPREME COURT REPORTS [2013) 14 S.C.R.
A Principles of State Policy, enunciated in the Constitution
o!' India. For co-operative societies working in more than
one State, The Multi State Co-operative Societies Act,
1!384 was enacted by the Parliament under Entry 44 List
I of the Seventh Schedule of the Constitution. Co-
B 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. [Para 23] [505-B-0]
2.1. People's right to have access to an official
C 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
f:ouchstone to all the freedoms to which the United
Nations is consecrated. India is a party to the
D l1nternational 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
E 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. [Para 44]
[517-E-G]
F Bennet Coleman and Co. and Ors. vs. Union of India and
Ors. (1972) 2 SCC 788: 1973 (2) SCR 757 l:Jnion of India vs.
Association of Democratic Reforms and Anr'. (2002) 5 SCC
294: 2002 (3) SCR 696; State of U.P. vs. Raj Narain and Ors.
(1975) 4 SCC 428: 1975 (3) SCR 333; People's Union for
G Civil Liberties (PUCL) and Ors. vs. Union of India and Anr.
(2003) 4 sec 399: 2003 (2) SCR 1136 - referred to.
2.2. 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
H information under the control of public authorities in
THALAPPALAM SER. COOP. BANK LTD. v. STATE 481
Of KERALA
order to promote transparency and accountability in the A
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 B
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. c
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. [Para 0
45) [518-E-H; 519-A]
2.3. 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 coUection, maintenance and E
dissemination of their personal information and for
penalization for violation of such rights and matters
connected therewith, is pending. The right to privacy as
a fundamental right emanating from Article 21 of the
Constitution of India. Right to privacy is also recognized F
as ~ basic human right under Article 12 of the Universal
Declaration of Human Rights Act, 1948. Article 17 of the
International Covenant on Civil and Political Rights Act,
1966, to which India is a party also protects that right.
[Para 46] [519-B, D, F] G
Kharak Singh vs. State of UP. and Ors. AIR 1963 SC
1295: 1964 SCR 332; R. Rajagopal alias R.R. Gopal and
Anr. vs. State of Tamil Nadu and Ors. (1994) 6 SCC 632:
1994 (4) Suppl. SCR 353; People's Union for Civil Liberties H
482 SUPREME COURT REPORTS [2013] 14 S.C.R.
A (PUCL) vs. Union of India and Anr. (1997) 1 SCC 301: 1996
(10) Suppl. SCR 321 ; State of Maharashtra vs. Bharat Shanti
Lc31 Shah and Ors. (2008) 13 sec 5: 2008 (12) SCR 1083 -
rEilied on.
2.4. Right to information and. Right to privacy are,
8
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
r·egulated, restricted and curtailed in the larger public
i1nterest. The scope and ambit of the expression "public
C 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 have a right to get information, but can
have access only to the information "held" and under the
D "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
E the citizens to secure acc;ess to those information whjch
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. [Para 47] [520-B-G]
F
2.5. 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 O> of Sub-
section (1) of Section 8. Section 8 begins with a non
G 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
H in clauses (a) to (j). Public authority, as already indicated,
THALAPPALAM SER. COOP. BANK LTD. v. STATE 483
OF KERALA
cannot access all the information from a private individual, A
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 B
to the limitations provided in Section B(j) of the RTI Act.
Right to be left alone, is the most comprehensive of the
rights and most valued by civilized man. [Paras 48 and
49] [520-G-H; 521-D-G]
Girish Ramchandra Deshpande vs. Central Information C
Commissioner and Ors. (2013) 1 SCC 212: 2012 (8) SCR
1097- relied on.
Olmstead vs. The United States 1927 (277) US 438 -
referred to. D
2.6. 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 E
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" F
are used, the categories mentioned there would exhaust
themselves. [Para 27] [507-D-F]
Delhi Development Authority vs. Bhola Nath Sharma
(Dead) by LRs and Ors. (2011) 2 sec 54 - relied on. G
2.7. The RTI Act, 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 H
484 SUPREME COURT REPORTS [2013] 14 S.C.R.
A financed, directly or indirectly, by funds provided by the
e1ppropriate government, in the event of which they may
fall within the definition of Section 2(h)(d)(i) or (ii)
1respectively. A body, institution or an organization, which
is neither a State within the meaning of Article 12 of the
B Constitution or instrumentalities, may still answer the
definition of public authority under Section 2(h)d (i) or (ii).
[Para 31] [509-B-D]
2.8. The word "control" is also sometimes used
synonyms with superintendence, management or
C authority to direct, restrict or regulate by a superior
authority in exercise of its supervisory power. When the
meaning qf expression "controlled" is tested which
figures in between the words "body owned" and
"substantially financed", the control by the appropriate
D 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
E 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
F 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
G of Directors of the Society by the respective Cooperative
Societies Act and not on the authorities under the Co-
operative Societies Act.' Therefore, 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
H owned or substantially financed by. the appropriate
THALAPPALAM SER. COOP. BANK LTD. v. StATE 485
OF KERALA
government, that is the control of the body is of such a A
degree which amounts to substantial control over the
management and affairs of the body. [Paras 33, 34 and
35] [511-B-C; 512-A-F]
State of West Bengal and Anr. vs. Nripendra Nath Bagchi 8
AIR 1966 SC 447: 1966 SCR 771; Chief Justice of Andhra
Pradesh and Ors. vs. L. VS.A. Dixitulu and Ors. (1979) 2 sec
34: 1979 (1) SCR 26; Corporation of the City of Nagpur Civil
Lines, Nagpur a[ld Anr. vs. Ramchandra and Ors. (1981) 2
SCC 714: 1981 (3) SCR 22; The Shamrao Vithal Co- C
operative Bank Ltd. vs. Kasargode Pandhuranga Mal/ya
(1972) 4 SCC 600: 1972 (2) SCR 162; State of Mysore vs.
Allum Karibasappa aqnd Ors. (1974) 2 SCC 498: 1975 (1)
SCR 601; Madan Mohan Choudhary vs. State of Bihar and
Ors. (1999} 3 SCC 396: 1999 (1) SCR 596; Gauhati High
Court and Anr. vs. Kuladhar Phukan and Anr. (2002) 4 SCC D
524: 2002 (2) SCR 808; State of Haryana vs. lnder Prakash
Anand HCS and Ors. (1976) 2 SCC 977: 1976 (0) Suppl.
SCR 603; High Court of Judicature for Rajasthan vs. Ramesh
Chand Paliwal and Anr. (1998) 3 SCC 72: 1998 (1) SCR 961;
Kanhaiya Lal Omar vs. R.K. Trivedi and Ors ... (1985) 4 SCC E
6'28: 1985 (3) Suppl. SCR 1; TMA Pai Foundation and Ors.
vs. State of Kamataka (2002) 8 SCC 481: 2002 (3) Suppl.
SCR 587; &.am Singh and Ors. vs. Union Territory,
C,handigarh and Ors. (2004) 1 SCC 126: 2003 (5) Suppl.
SCR 357 - referred to. F
2.9. 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 G
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".
H
486 SUPREME COURT REPORTS [2013] 14 S.C.R.
A T'he word "substantial" literally means solid, massive etc.
l.egislature 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,
B tolerable etc. [Para 36) [512-G-H; 513-A, BJ
Pafser vs. Grimling (1948) 1 All ER 1, 11 (HL) - referred
to.
Black's Law Dictionary (6th Edn.) - referred to.
c
2.10. 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
0 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
E 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. [Para 38) [513-H; 514-A-B]
2.11. Whether an NGO has been substantially
F financed or not by the appropriate Government, may be
a question of fa~t. to be examined by the authoritie.s
concerned under the RTI Act. Such organization can be
substantially financed either directly or indirectly by funds
provided by the appropriate Government. Government
G 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
H Section 2(h)(d)(ii) of the RTI Act. Consequently, even
THALAPPALAM $ER. COOP. BANK LTD. v. STATE 487
OF KERALA
private organizations which are, though not owned or A
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. [Para 39]
[514-E-H; 515-A]
B
2.12. 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 c
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 0
is also free to establish that it is not owned, controlled
or substantially financed directly or indirectly by the
appropriate Government. [Para 40] [515-8-D]
2.13. Powers have been conferred on the Central
Information Commissioner or the State Information E
Commissioner under Section 18 of the RTI 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 F
financed directly or indir~ctly 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 G
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 H
4£38 SUPREME COURT REPORTS [2013) 14 S.C.R.
A funds provided by the appropriate authority. [Para 41]
[!515-D-G]
2.14. Legislative intention is clear and is discernible
!From Section 2(h) that intends to include various
categories. It is trite law that primarily language employed
8
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. The courts are warned that
they are not entitled to usurp the legislative function
under the guise of interpretation. The court must avoid
C 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 if
words of a statute are clear, plain and unambiguous i.e.
D 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
E statute ~rises, for the statute speaks for itself, [Para 42]
[515-G-H; 516-A-B, D-E]
D.A. Venkatachalam and Ors. vs. Dy. Transport
Commissioner and Ors. (1977) 2 SCC 273: 1977 (2) SCR
F 392; Union of India vs. Elphinstone Spinning and Weaving
Co. Ltd. and Ors. (2001) 4 SCC 139: 2001 (1) SCR 221;
District Mining Officer arid Ors. vs. Tata Iron aqnd Steel Co.
and Anr. (2001) 7 SCC 358: 2001 (1) Suppl. SCR 147;
Padma Sundara Rao (Dead) and Ors. vs. State of Tamil Nadu
and Ors. (2002) 3 SCC 533: 2002 (2) SCR 383; Mau/vi
G Hussain Haji Abraham Umarji vs. State of Gujarat and Anr.
(2004) 6 SCC 672: 2004 (3) Suppl. SCR 202; Kanai Lal Sur
vs. Paramnidhi Sadhukhan AIR 1957 SC 907: 1958 SCR 360
- relied on.
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 489
OF KERALA
Magor and St. .Me/Ions Rural District Council vs. New Port A
Corporation (1951) 2 All ER 839{HL) - referred to.
2.15. The High Court has given a complete go-bye to
the statutory principles and gone at a tangent by mis-
interpreting the meaning and content of Section 2{h) of 8
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 C
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 D
prevent mismanagement in time. 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 E
tests laid down by this Court. Court cannot, when
language is clear and unambiguous, adopt such a
construction which, according to tlie Court, would only
advance the objective of the Act. The opening part of the
definition clause states "unless the context otherwise F
requires". No materials have been made available to show
that the co-operative societies, in question in the context
of the Act, would fall within the definition of Section 2(h)
of the Act. [Para 43) [516-G-H; 517-A-D]
G
2.16. The Societies, in the present 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,
H
490 SUPREME COURT REPORTS [2013) 14 S.C.R.
A the State Information Officer can examine the same and
find out whether the Society in question satisfies the test
laid in this judgment. [Para 51] [522-D-E]
2.17. The Cooperative Societies registered under the
Kerala Co-operative Societies Act will not fall within the
8
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,
C 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. [Para 54] [542-A-C]
D Thalapalam Service Co-operative Bank Ltd. vs. Union of
India AIR 2010 Ker 6 - referred to.
Case Law Reference:
AIR 2010 Ker 6 referred to Para 3
E
1998 (3) Suppl. SCR 659 referred to Para 13
1988 (3) Suppl. SCR 398 referred to Para 13
1976 (2) SCR 1006 relied on Para 14
F 2003 (4) Suppl. SCR 121 referred to Para 16
2'006 (1) Suppl. SCR 311 relied on Para 17
(2011) 2 sec 54 relied on Para 27
G 1966 SCR 771 referred to Para 31(b)
1979 (1) SCR 26 referred to Para 32
1981 (3) SCR 22 referred to Para 32
1972 (2) SCR 162 referred to Para 33
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 491
OF KERALA
1975 (1) SCR 601 referred to Para 33 A
1999 (1) SCR 596 referred to Para 33
2002 (2) SCR 808 referred to Para 33
1976 (0) Suppl. SCR 603 referred to Para 33
8
1998 (1) SCR 961 referred to Para 33
1985 (3) Suppl. SCR 1 referred to Para 33
2002 (3) Suppl. SCR 587 referred to Para 33
c
2003 (5) Suppl. SCR 357 referred to Para 33
(1948) 1 All ER 1, 11 (HL) referred to Para 36
(1951) 2 All ER 839(HL) referred to Para 42
1977 (2) SCR 392 relied on Para 42 D
2001 (1) SCR 221 relied on Para 42
2001 (1) Suppl. SCR 147 relied on Para 42
2002 (2) SCR 383 relied on Para 42 E
2004 (3) Suppl. SCR 202 relied on Para 42
1958 SCR 360 relied on Para 42
1973 (2) SCR 757 referred to Para 44
F
2002 (3) SCR 696 referred to Para 44
1975 (3) SCR 333 referred to Para 44
2003 (2) SCR 1136 referred to Para 44
G
1964 SCR 332 relied on Para 46
1994 (4) Suppl. SCR 353 relied on Para 46
1996 (10) Suppl. SCR 321 relied on Para 46
2008 (12) SCR 1083 relied on Para 46 H
492 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 1927 (277) us 438 referred to Para 49
2012 (8) SCR 1097 relied on Para 50
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9017 of 2013.
B
From the Judgment & Order dated 10.04.2012 of the High
Court of Kerala at Ernakulam in W.A. No. 1688 of 2009.
WITH
C C.A. Nos. 9020, 9023 & 9029 of 2013.
K. Padmanabhan Nair, P.B. Suresh, Vipin Nair, U.
Banerjee (for Temple Law Firm), Sanand Ramakrishnan, Rajeev
Mishra, M.P. Vinod, Dileep Pillai, Ajay K. Jain, Neelam Saini
for the Appellants.
0
Bina Madhavan, Ajay (for Ramesh Babu M.R.), Romy
Chacko for the Respondents.
The Judgment of the Court was delivered by
E
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 Acr) will
F 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.
G 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
H coming under the administrative control of the Registrar, are
THALAPPALAM SER. COOP. BANK LTD. v. STATE 493
OF KERALA [K.S. RADHAKRISHNAN, J.]
"public authorities" within the meaning of Section 2(h) of the RTI A
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 Tha/apalam B
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, c
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 D
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 a~e autonomous bodies E
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 F
financed, dir~ctly 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. G
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
H
494 SUPREME COURT REPORTS [2013) 14 S.C.R.
A 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
B 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
c 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
0 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
E 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
F 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
G 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,
H it was also pointed out that the disclosure of the information has
THALAPPALAM SER. COOP. BANK LTD. v. STATE 495
OF KERALA [K.S. RADHAKRISHNAN, J.]
no relationship to any "public. activity" and held by the society A
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 B
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 c
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 D
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 E
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 date.d 03.04.2009 came
up for consideration before another Division Bench of the High F
qourt which set aside the judgment of the le13rned 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 G
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, H
496 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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
C 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
D 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
E 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
F No.23/2006 dated 01.06.2006, which reads as under:
"G 1/40332/05
Registrar of Co-operative Societies,
Thiruvananthapuram, Dated 01.06.2006
G
Circular No.23/2006
Sub: Right to Information Act, 2005- Co-operative
Institutions included in the definition of "Public Authority"
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 497
OF KERALA [K.S. RADHAKRISHNAN, J.]
Ref: Governments Letter No.3159/P.S.1/06 A
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 !he enactment of this Act designate as
8
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 C
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. D
In the above circumstance the following directions are
issued:
1. All co-operative institutions coming under the E
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 F
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.
G
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 H
498 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B
website.
4. Hereafter application for information from co-
operative institutions need not be accepted by the
information offi,cers of this department. But if they
c 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
D 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
E
within one week. The Government Order Nb.2389/
06 dated 01.04.2006 is also enclosed.
Sd/-
F 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
G 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.
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 499
OF KERALA [K.S. RADHAKRISHNAN, J.]
12. We are in these appeals concerned only with the co- A
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. B
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 C
Constitution of India and, hence subject to all constitutional
limitations as enshrined in Part Ill 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 D
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 E
controlled by the State Government though lt 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 F
Board of Governors, Sainik Schools Society, New Delhi and
others (1989) Supplement 1 SCC 205, this Court held that tile
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 G
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
H
500 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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 ......... lt seems to us that before an institution can be
B
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
c 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
D 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
E provisions of a Statute. Societies, with whi~h we are concerned,
'tan 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
F 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
G 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.
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 501
OF KERALA [K.S. RADHAKRISHNAN, J.]
16. This Court in Federal Bank Ltd. v. Sagar Thomas and A
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 B
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 C
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 D
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 E
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 F
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 G
regulated as subject to such control of the State so as to bring
it within the meahing 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 H
502 SUPREME COURT REPORTS (2013) 14 S.C.R.
A 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:
B
"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
c 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
D 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
E exercises any direct or in.direct 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
F 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 contml
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
G
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
H aforementioned tests. In the case of a non-statutory society,
THALAPPALAM SER. COOP. BANK LTD. v. STATE 503
OF KERALA [K.S. RADHAKRISHNAN, J.]
the control thereover would mean that the same satisfies A
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,
B
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 C
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 o
State" within the meaning of Article 12 of the Constitution and
hence not subject to all constitutional limitations as enshrined
in Part Ill 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 E
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: F
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- G
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. H
504 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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
c 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
D 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
E 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-
F 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
G 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
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 505
OF KERALA [K.S. RADHAKRISHNAN, J.]
has been placed after recognizing the fact that there are co- A
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 8
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 C
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 D
economic development or for mutual help.
Right to Information Act
24. The RTI Act is an Act enacted to provide for citizens E
to secu·re, 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 F
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 G
Commissions and for matters connected therewith or
incidental thereto.
WHEREAS the Constitution of India has established
democratic Republic;
H
506 SUPREME COURT REPORTS [2013) 14 S.C.R.
A 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;
B
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;
c
AND WHEREAS it is necessary to harmonise these
conflicting interests while preserving the paramountcy of
the democratic ideal;
D 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
E 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
F record is facilitated. Public authority has also to carry out certain
other functions also, c;ts provided under the Act.
26. The expression "public authority" is defined under
Section 2(h) of the RTI Act, which reads as follows:
G "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
H constituted-
THALAPPALAM SER. COOP. BANK LTD. v. STATE 507
OF KERALA [K.S. RADHAKRISHNAN, J.]
(a) by or under the Constitution; A
(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 B
appropriate Government, and includes any-
(i) body owned, controlled or substantially
financed;
(ii) non-Government organisation C
substantially financed, directly or indirectly by
funds provided by the appropriate
Government"
27. Legislature, in its wisdom, while defining the o
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 E
restrictive and where the word is defir'led 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
F
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 G
expressions.
28. Section 2(h) exhausts the categories mentioned
therein. The former part of 2(h) deals with:
(1) an authority or body of or institution self-government H
508 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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,
B (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
c 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,
D established or constituted under the Constitution, by law made
by the Parliament, by law made by the State Legislature or b9
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:
E
(5) a body owned, controlled or substantially financed,
directly or indirectly by funds provided by the
appropriate government,
(6) non-governmental organizations substantially
F
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
G as follows :
"2(a). "appropriate Government" means in relation to a
public authority which is established, constituted,
owned, controlled or substantially financed by funds
H provided directly or indirectly-
THALAPPALAM SER. COOP. BANK LTD. v. STATE 509
OF KERALA [K.S. RADHAKRISHNAN, J.]
(i) by the Central Government or the Union A
territory administration, the Central
Government;
(ii) by the State Government, the State
Government." B
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 C
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 D
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 E
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.
F
(b} Body Controlled by the ApBropriate 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 G
"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.
H
510 SUPREME COURT REPORTS (2013] 14 S.C.R.
A 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
B 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
c 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
D 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
E 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
F Judges. Within the exercise of the control vested in the
High Court, the High Court car:i hold enquiries, impose
punishments other than dismissal or removal, ... "
32. The above position has been reiterated by this Court
G 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 :
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 511
OF KERALA [K.S. RADHAKRISHNAN, J.]
"4. It is thus now settled by this Court that the term "control" A
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 ....... "
B
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 Vitha/ Co-
operative Bank Ltd. v. Kasargode Pandhuranga Mal/ya
(1972) 4 sec 600, held that the word "control" does not c
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 D
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 Mo.han Choudhary v. State of Bihar & Ors. .(1999) 3 E
sec 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 F
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. lnder Prakash Anand
HCS and others (1976) 2 SCC 977, High Court of Judicature G
for Rajasthan v. Ramesh Chand Pa/iwal 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, H
etc.
512 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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
c 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
0
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.
E 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
F substantial control over the management and affairs of the body.
SUBSTANTIALLY FINANCED
36. The words "substanti,ally financed" have been used in
Sections 2(h)(d)(i) & (ii), while defining the expression public
G 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.
H "Substantial" means "in a substantial manner so as to be
THALAPPALAM SER. COOP. BANK LTD. v. STATE 513
OF KERALA [K.S. RADHAKRISHNAN, J.)
substantial". In Palser v. Grimling (1948) 1 All ER 1, 11 (HL), A
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. B
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
c
"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 D
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 E
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 F
effect, effectiv~. thorough.' The word 'substantially' has ~een
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 G
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
H
514 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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
c 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:
D 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,
E 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
F 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
G 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
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 515
OF KERALA [K.S. RADHAKRISHNAN, J.]
Government will also fall within the definition of "public authority" A
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 B
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 Information Commission or the Central
Information Commission, as the case may be, when the C
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 0
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
E
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. F
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.
G
42. Legislative intention is clear a,nd 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
H
516 SUPREME COURT REPORTS [2013) 14 S.C.R.
A and the intention of the legislature must be found in the words
used by the legislature itself. In Magor and St. Me/Ions 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
B 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 sec 358,
c Padma Sundara Rao (Dead) and others v. State of Tamil
Nadu and others (2002) 3 SCC 533, Mau/vi Hussain Haji
Abraham Uma;ji 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
D 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
E 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
F 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
G 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
H "ultimate object" i.e. to achieve "transparency and
THALAPPALAM SER. COOP. BANK LTD. v. STATE 517
OF KERALA [K.S. RADHAKRISHNAN, J.]
accountability", which according to the court could alone A
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, B
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 c
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
0
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
E
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 F
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 G
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 H
518 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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 UP. Vs. Raj Narain and others
c (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 Liberlies (PUCL) and
others Vs. Union of India and another (2003) 4 sec 399, this
0 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.
E 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.
F Preamble of the Act also states that the democracy requires
an informed citizenry and transP,arency 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
G 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
H are being prescribed under the Act itself, which are reasonable
THALAPPALAM SER. COOP. BANK LTD. v. STATE 519
OF KERALA [K.S. RADHAKRISHNAN, J.]
restrictions within the meaning of Article 19(2) of the A
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
B
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. C
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 sec 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 D
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 E
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 F
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 G
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 H
520 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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."
B 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
C 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
D 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
E a _right to get information, but can have access only to the
inlormation "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
F 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
G 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 0) of Sub-section (1) of Section
8. Section 8(1 )0) is of considerable importance so far as this
H case is concerned, hence given below, for ready reference:-
THALAPPALAM SER. COOP. BANK LTD. v. STATE 521
OF KERALA [K.S. RADHAKRISHNAN, J.]
"8. Exemption from disclosure of information - (1) A
Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen -
(a) to (i) xxx )()()( )()()(
0) information which relates to personal information the 8
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 C
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 shal[ not
be denied to any person."
D
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
E
in clauses (a) to 0). 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
F
available· only subject to the limitations provided in Section 80)
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. G
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 H
522 SUPREME COURT REPORTS [2013] 14 S.C.R.
A personal and has no relationship with any public activity or
iriferest 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.
B 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 )0) of the Act. Further, if the authority
c 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 2f of the Constitution.
D 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
E Information Commission 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
F 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
·G 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
H · under the RTI Act. Information which he is expected to provide
THALAPPALAM SER. COOP. BANK LTD. v. STATE 523
OF KERALA [K.S. RADHAKRISHNAN, J.]
is the information enumerated in Section 2(f) of the RTI Act A
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 B
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 )U) of the Act. No provision has been brought to our
knowledge indicating that, under the Cooperative Societies Act, c
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
0
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 80) 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 E
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.
F
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 G
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.
H
524 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 54. We, therefore, hold that the Cooperative Societies
registered under the Kerala Co-operative Societies Act will not
fall within the Clefinition 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
B 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
c are, therefore, allowed as above, however, with no order as to
costs.
Kalpana K. Tripathy Appeals allowed.
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