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Thalappalam Ser. Coop. Bank Ltd. and others v. state of Kerala and others

Case number:
Civil Appeal NO. 9017
Country:
India
Date of decision:
3 October 2013
Court / Arbiter:
Supreme Court of India ( Supreme )

Relevant law :

Decision:

Co-operative Society registered under the Kerala Co-operative Societies Act is not bound by right to information act to provide information sought by a citizen and that the society does not fall within the definition of “public authority.”


Keywords:
Commercial confidentiality (including financial/economic interests of private parties or public authorities)
Economic information (including of public authorities, national government; not of individuals)
RTI law

Case details:

Facts

In May 2007, the applicant under RTI act requested information relating to the bank accounts of certain members of the Mulloor Rural Co-operative Society Ltd. The society refused to grant access to the mentioned information due to its nature of confidentiality and alleged violation of “commercial confidence.” Moreover, it was pointed out that the information has no relationship to any “public activity” conducted by the society.(p.6) However, State information officer decided that non-disclosure violated mandatory provisions of RTI act and renders society liable to be punished for non-compliance.  In its decision state information officer relied on circular note issued by the Registrar establishing administrative control over all societies as “public authorities” falling under the section 2(h) of RTI act.

Co-operative Society filed writ petition with High Court challenging the order of state information officer. The single judge of the high court established that all co-operative societies registered under Societies Act were public authorities and therefore bound to act in conformity with RTI.(p.8) Subsequently,  several appeals, revoking the decision and adopting reserved views on definition of “public authority” followed before submission reached Full Bench. The bench gave liberal interpretation of public authority, capable of covering co-operative societies and thus, obligation to comply with RTI.(p.9)

As a result, the appeal was brought before the Supreme Court of India with two substantial questions to be answered: whether a co-operative society falls within the definition of “public authority” under section 2(h) of RTI act and if society is bound to provide information requested by the citizen.(p.2)

Decision

In order to answer questions presented before it, court began examining the status of co-operative societies under the constitution. Namely, whether they might fall under the definition of “state” as enshrined in article 12 of the constitution.  The court referring to its previous case law concluded that the level of direct or indirect control with respect of societies does not meet the required threshold, that is, is not “deep and all pervasive”, thus they cannot be considered as “states,”(p.17) however still capable of satisfying the definition of public authority.(p.19)

The court continued than turned to scrutiny of Right to Information Act, which provides for citizens right to access information “under the control of public authorities.”(p.23) The definition of “public authority” is provided under Section 2(h) of RTI Act. The court established that essential part of the provision applicable in the case before it referred to control or “substantial funding” of an institution or non-governmental organization. (p.27) In this respect the court first outlined the test required for the establishment of “control.” The analysis of case-law lead to conclusion that “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 RTI Act.”(p.33)

Subsequently, the court engaged into defining words “substantially finanaced.” At the outset, the court established that financing might be direct or indirect. Additionally, referring to the Plaser v Grimling

Case court established that term cannot be interpreted under de minimis approach, implying that the financing must be “actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable.”(p.35) The court also noted that state may provide schemes for welfare projects, however unless the funding is so substantial that the body “would struggle to exist” the relevant provision could not be engaged.  Thus “merely providing subsidiaries, grants, exemptions, privileges” does not satisfy the requirement. (p.37) As an example of substantial funding the court noted schools getting 95 per cent grant in aid from government.

As to the  NGOs, the court noted that even in the absence of statutory control, it still can be established that NGO has been substantially financed directly or indirectly by the governmental funds. The latter would bring those organizations within the definition of “public authority”. (p.39)

Furthermore, the court also declared that the burden of proof is on the applicant who seeks information “or the appropriate government “ and can be examined by “state public information officer, state chief information officer, State chief information Commissioner, central Public information officer.”(p.39)

Lastly, the court engaged into balancing disclosure of information and privacy rights. It concluded that if information is personal and does not relate to any public activity or interest, the public authority or officer is not obliged to comply with request(p52).

Applying the criteria to the circumstances of the case, the court concluded that The Cooperative Societies registered under Co-Operative Societies Act would not be considered as “public authority”, since it cannot be shown that they are “owned, controlled or substantially financed “ by the government. (p56)

Resources:

Judgement of The Court.