In a significant judgment the Kerala High Court has ruled that Societies registered under the Kerala Cooperative Societies Act are Public Authorities under the RTI Act 2005.
This judgment will be useful to members and guests who are trying to get information from Cooperative Societies and Banks in other States/UT's. Of course, members are advised to consult the Cooperative Societies Act of their particular State, in order to correctly ascertain whether this particular judgment of the Kerala High Court becomes applicable in their case.
The judgment is also significant because the learned judge has gone into many issues which are very relevant for RTI applicants.
The background of the case is that the RCS in Kerala issued a circular that all societies registered under the KCS Act are under his administrative control and therefore are Public Authorities under the RTI Act. They were asked to fulfill their obligations under the Act and also to designate CPIO's.
Since there was non compliance on the part of the cooperative societies, the office of the RCS started receiving Complaints from citizens as well as some applicants went all the way to the KIC to lodge Complaints, which in turn issued notices.
A bunch of writ petitions was filed by the Cooperative Societies challenging the circular of the RCS, the actions of the officers of the RCS and the notices of the SIC.
1. The court interpreted the KCS Act and ruled that the RCS had access to the information held by the Societies. Sec 2(h) of the RTI Act read along with Sec 2(f) clearly meant that the RCS can access the information held by the societies. Further, several clauses of the KCS Act made it clear that RCS exercised "control" over the societies and therefore information could be sought even if the societies were private bodies.
2. The Court has also ruled that the term "funds provided by the appropriate Government" had to be interpreted in the widest sense as:
"......is not necessarily providing funds from what belong to the
appropriate Government, either exclusively or otherwise, but
also those provisions which come through the machinery of
the appropriate Government, including by allocation or
provision of funds with either the concurrence or clearance of
the appropriate Government. This view emanates on a plain
reading of the provision under consideration, having regard to
the object sought to be achieved by the RTI Act and in this
view, the said provision has to be read to take within its sweep
all funds provided by the appropriate Government, either from
its own bag or funds which reach the societies through the
appropriate Government or with its concurrence or clearance.
Not only do I find no ground to exclude this interpretation, but
see much support for it. If the legislative intention were not
so, it was unnecessary to state in the RTI Act ". . . . . . .
substantially financed . . . . . . . by funds provided by . . . . . .".
It would have been sufficient to state ". . . . . substantially
financed by. . . . . . .". The use of the words "by funds provided
by" enlarges and dilates the scope of the words "substantially
financed" in that provision......."
3. The court also interpreted the word "substantial", as used in Sec 2(h) of the RTI Act:
"...The word "substantial" has no fixed meaning. For the
purpose of a legislation, it ought to be understood definitely by
construing its context. Unless such definiteness is provided, it
may be susceptible to criticism even on the basis of Article 14
of the Constitution........
......essentially advises that the provision
under consideration has to be looked into from the angle of the
purpose of the legislation in hand and the objects sought to be
achieved thereby, that is, with a purposive approach. What is
intended is the protection of the larger public interests as also
private interests. The fundamental purpose is to provide
transparency, to contain corruption and to prompt
accountability. Taken in that context, funds which the
Government deal with, are public funds. They essentially
belong to the Sovereign, "We, the People". The collective
national interest of the citizenry is always against pilferage of
national wealth. This includes the need to ensure complete
protection of public funds. In this view of the matter, wherever
funds, including all types of public funding, are provided, the
word "substantial" has to be understood in contradistinction to
the word "trivial" and where the funding is not trivial to be
ignored as pittance, the same would be "substantial" funding
because it comes from the public funds. Hence, whatever
benefit flows to the societies in the form of share capital
contribution or subsidy, or any other aid including provisions
for writing off bad debts, as also exemptions granted to it from
different fiscal provisions for fee, duty, tax etc. amount to
substantial finance by funds provided by the appropriate
Government, for the purpose of Section 2(h) of the RTI Act."
3. The court has then gone into various sections of the KCS and concluded that there is enough scope for the "appropriate government" to administer, interfere, control and finance the cooperative societies. It concludes this argument with:
".....it has to be treated that those societies are non-governmental organisations substantially financed, directly or indirectly by funds provided by the appropriate Government. This view will only give effect to, and further the intention of the legislature and the objects sought to be achieved by having the RTI Act in place."
4. The court has also gone into a placement of punctuation marks, like colons, semi-colons and commas in various places of the RTI Act, specially in Sec 2(h):
"Semi colon provided at the end of the word "financed" in
clause (i) in the inclusive limb of Section 2 (h) of the RTI Act is
so placed only because of the coma used in that clause, after
the word "owned". A semi colon is not used at the end of
clause (ii) because no coma is used anywhere in that limb. The
meaning sought to be conveyed by the legislative provision in
hand is quite clear. The term "fund" relates primarily to
money. That, in turn, is relatable only to financing. In any
concept of the matter, be it common parlance or technically
administrative, the words "directly and indirectly by funds
provided by the appropriate Government" relate only to the
term "substantially financed" occurring in clauses (i) and (ii) of
the expansive limb of the definition of public authority. As far
as the words "body owned" and "controlled" occurring in the
first limb are concerned, that usage is also beyond any shade
of doubt. That what is conceived and provided for by the
legislation is that such owning or control is by the appropriate
Government. If any person who is exceptionally well versed in
the punctuation of English language needs, I may attempt to
add a semi colon after the word "provided" in the last lap of
the definition clause. There is really no ambiguity in the
matter and this judicial declaration as to the interpretation
and construction of the definition of public authority as defined
in clauses 2 (h) is only clarificatory of the position which is
otherwise explicit, viz., that any body owned or controlled by
the appropriate Government and any body substantially
financed by funds provided by the appropriate government as
also any non-government organisation substantially financed
by funds provided by the appropriate Government would fall
within the inclusive limb of the definition of public authority in
Section 2(h) of the RTI Act."
5. It has also noted that a large amount of finance reaches the societies through cooperative banks, credit societies, etc., which are themselves either controlled by the Government or financed by it. The finances also have to either be recommended by the Government or actively allotted/allocated by it.
All this has led the court to the conclusion that Societies registered under the KCS are Public Authorities under the RTI Act.
The court has further clarified that:
1. If any individual society refuses to provide information directly to a applicant contending that it is not substantially financed by the government, the applicant can complain under Sec 18(1) to the SIC, which has the powers to decide whether that particular society is a PA or not.
2. The officers of the RCS can also forward the requests received from applicants for information under the RTI Act to the societies, which can provide the information directly to the applicants.
The complete judgment has been uploaded to the www.rtiindia.info website, in the Court Orders section.