THALAPPALAM SER. COOP. BANK LTD & Ors. v. STATE OF KERALA & Ors.

Judgment

14 S.C.R. 475 THALAPPALAM SER. COOP. BANK LTD. AND ORS. v. STATE OF KERALA AND ORS. {Civil Appeal No. 9017 of 2013) OCTOBER 07, 2013 [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] A B 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. F 'Substantial' and 'substantially financed' - Meaning of, in 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 the Act. [Para 18) [503-D-E] E F

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 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] C D E

2.1. 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 f:ouchstone to all the freedoms to which the United Nations is consecrated. India is a party to the 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 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 information under the control of public authorities in H THALAPPALAM SER. COOP. BANK LTD. v. STATE 481 Of KERALA instrumentalities B 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 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