In the issue of June, 2013 in this column, it was reported that as a consequence of 97th Amendment to the Constitution the Co-operative Societies become Public Authorities and get covered under RTI. Recently the Supreme Court passed a judgment as noted below, which has given impression that SC has held that Co-op. Societies are not so covered. Mr. Vijay Kumbhar has now analysed the judgment as under:
Co operative societies not out of ambit of RTI
The manner and timing of reporting regarding Supreme Court’s (SC) judgement (CIVIL APPEAL NO. 9017 OF 2013) about co-operative sugar factories (CS) is amazing. In many news papers they have published date of judgement as 15th October. Actually it was given on 7th October. At least people concerned with RTI knew about it but it was not discussed thoroughly. On 9th of October Anna Hazare and Medha Patkar alleged about Rs. 10,000 crore scam in the sale of the co-operative sugar factories purchased by the political leaders across parties in Maharashtra. After that, a lot of news items appeared in the media. That stunned the government as well as cooperative mafias .Then suddenly news appeared in the media “Cooperatives out of bounds of RTI, rules Supreme Court”.
If read carefully it is clear that SC has only decided about who should provide the information, and it has made it clear that Registrar of Cooperatives (RoC) is duty bound to provide the information irrespective of whether CS is substantially financed or not. Before one draws any conclusion let us study some of the paragraphs of the said judgement. In para 12 SC says, we are in these appeals concerned only with the cooperative 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
It is very evident from the above para that this judgement is not applicable to only societies mentioned above. Then how one can say that due to SC judgement all societies have come out of RTI ambit.
In para 52, SC says Registrar of Cooperative Societies functioning under the Cooperative Societies Act is a public authority within the 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 under the RTI Act.
Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act 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 2(f), he can also gather that information from the Society, to the extent permitted by law. Registrar is also not obliged to disclose that information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only that 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 is “held” or “under the control of public authority”. Even that information, Registrar, as already indicated, is not legally obliged to provide if that information falls under the exempted category mentioned in Section 8(j) of the Act.
Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a Cooperative 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.
It is clear from above para that whatever information the register has and can gather from cooperative societies, he/she is duty bound to furnish it to applicant under RTI act , irrespective of whether society is substantially financed or not. The only binding on the register is to take into consideration section 8 of the RTI act. However that burden was already there. In para 53, SC says, ‘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 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’. From reading of above para it is well clear that SC has said that even if information is personal one if there is larger public interest RoC may provide that to applicant.
In para 40 SC says 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 information or the appropriate Government and can be examined by the State Public Information Officer, State Chief Information Commission, Central Public Information Officer etc., when the 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.
In para 41 SC says Powers have been conferred on the Central Information 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 organisation substantially financed directly or indirectly by the funds provided by the appropriate Government.
From reading para 40 and 41 together one can easily draw the conclusion that if Cooperative society or NGO body is owned, controlled or substantially financed then PIO, Information Commission have powers to decide over that. In other words if they come to conclusion that concerned CS or NGO is owned, controlled or substantially financed directly or indirectly by the funds provided by the appropriate Government they can declare such organisation a public authority. Otherwise registrar of cooperatives is duty bound to furnish the information. 240 (2013) 45-B BCAJ In other words Supreme Court in its recent judgment has only decided about who should provide the information under RTI Act , is it Registrar of co operative societies or direct societies and also answered that RoC is duty bound to supply the information in case CS is not substantially financed or ask society to appoint PIO if satisfied.
Against above opinion based on analysis made by Shri Vijay Kumbhar, some hold the view otherwise. Finantail Express (dated 23.10.2013) has reported as under: Cooperative societies including coop banks will not fall within the definition of ‘public authority’ for purposes of the Right to Information Act, and hence the Registrar of Cooperative Societies is not liable to provide information to the general public under this law, the Supreme Court has held in the case, Thalappalam Service Cop Bank Ltd vs state of Kerala.
Against above opinion based on analysis made by Shri Vijay Kumbhar, some hold the view otherwise. Finantail Express (dated 23.10.2013) has reported as under: Cooperative societies including coop banks will not fall within the definition of ‘public authority’ for purposes of the Right to Information Act, and hence the Registrar of Cooperative Societies is not liable to provide information to the general public under this law, the Supreme Court has held in the case, Thalappalam Service Cop Bank Ltd vs state of Kerala.
It said that the powers exercised by the Registrar and others under the Cooperative Societies Act are “only regulatory or supervisory” and will not amount to dominating or interfering with the management or affairs of the society so as to control it. Besides, “the societies are not statutory bodies and are not performing any public functions and will not come within the expression ‘sate’ within the meaning under Article 12 of the Constitution of India,” it added.
Recognizing that the right to privacy was a sacrosanct facet of Article 21 of the Constitution, the apex court said that if the information 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, even if he has got that 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.
In this case, various coop societies had challenged the full Bench of the Kerala High Court’s judgment that upheld the state government’s circular and brought coops within the RTI ambit. The state government claimed the circular to be in the larger public interest so as to promote transparency and accountability in the working of every co-operative society in Kerala.
