IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 18175 of 2006(L) -------------------------------------- PETITIONER(S): ---------------------- THALAPALAM SERVICE CO-OPERATIVE BANK LTD.NO.3937, PLASSANAL.P.O, KOTTAYAM DISTRICT, REP. BY ITS SECRETARY, K.M.NARAYANANPILLAI. BY ADV. MR.P.V.BABY RESPONDENT(S): ------------------------- 1. UNION OF INDIA, REP. BY ITS SECRETARY TO LAW DEPARTMENT, CENTRAL SECRETARIAT, NEW DELHI. 2. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 4. STATE INFORMATION COMMISSIONER, THIRUVANANTHAPURAM. 5. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MEENACHIL, PALA. 6. K.T.THOMAS, KOOTTUNKAL HOUSE, POST ANJOOTTIMANGALAM, VIA. PLASSANAL. R2, R3 & R5 BY GOVERNMENT PLEADER SMT.A.G.ANEETHA R1 BY ADV. MR.P.PARAMESWARAN NAIR, ASG R4 BY ADV. MR.M.AJAY, SC, STATE INFORMATION COMMN R6 BY ADV. MR.SHAJI THOMAS PORKKATTIL R6 BY ADV. MR.BINU PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2008, ALONG WITH WPC NO. 20154 OF 2006 AND CONNECTED CASES, THE COURT ON 03/04/2009 DELIVERED THE FOLLOWING: W.P.(C). NO. 18175/2006-L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CIRCULAR NO.23/2006 DATED 01/06/2006 ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE APPLICATION DATED 07/02/2006 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 5TH RESPONDENT. EXT.P3: COPY OF THE COMMUNICATION DATED 05/04/2006 SENT BY THE 5TH RSPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE COMMUNICATION DATED 29/06/2006 SENT BY THE 5TH RESPONDENT TO THE PETITIONER. RESPONDENT'S ANNEXURES : ANNEXURE A1: COPY OF THE BUDGET NOTE (SUBJECT COMMITTEE NOTE) FOR THE YEAR 2008-09. //TRUE COPY// P.A. TO JUDGE Rs/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.18175, 20154 & 33318 OF 2006, 17156, 19384, 20308, 23571, 25941, 24513, 32332, 34229, 34798, 35106, 35244, 35285, 36219, 36372, 36800 & 36891 OF 2007, 3324, 3351, 4660, 4793, 5234, 6471, 7584, 12803, 14280, 14936, 15403, 16412, 19729, 19923, 20572 & 22855 OF 2008 ------------------------------------------- Dated this the 3rd day of April, 2009 JUDGMENT “C.R.” 1. These writ petitions raise the question of applicability of the Right to Information Act, 2005, hereinafter, the 'RTI Act', to co-operative societies registered under the Kerala Co- operative Societies Act, 1969, for short, the 'KCS Act'. 2. The Registrar of Co-operative Societies issued circular No.23/06, taking the view that all co-operative societies registered under the KCS Act, hereinafter, for short, the 'societies', are under the administrative control of the Registrar and therefore, public authorities for the purpose of the RTI Act. Directions were hence issued, requiring all societies to discharge the obligations as public authorities WPC.18175/06 & con. Cases Page numbers under the RTI Act and to follow the procedure stated therein. The Information Officers in the Co-operative Department of the State Government commenced acting on complaints of non-consideration of requests for information made by different persons to societies. These writ petitions are hence filed, seeking to quash the aforesaid circular and for a declaration that the RTI Act does not apply to societies registered under the KCS Act. Certain actions taken by the officers under the KCS Act and orders issued by the State Information Commission touching the issue, in individual cases, are also under challenge. 3. In its gist, the contention advanced by the petitioners is that the societies are not public authorities as defined in Section 2 (h) of the RTI Act, but are establishments over which, the statutory provisions under the KCS Act and Kerala Co- operative Societies Rules 1969, for short, the 'KCS Rules', framed under that Act, apply, providing access to information by recourse to those procedures. On behalf of the petitioners, WPC.18175/06 & con. Cases Page numbers it is argued that societies are not established or constituted by or under the Constitution; by any other law made by Parliament; by any other law made by the State Legislature or by notification issued or order made by the appropriate Government and that they are not bodies owned, controlled or substantially financed by funds provided by the appropriate Government and hence, do not fall within the definition of “public authority” under Section 2 (h) of the RTI Act. The obligation to act in terms of Section 4 (1) of the RTI Act is confined only to “public authorities” as defined in that Act and therefore, the Registrar of Co-operative Societies had acted contrary to the statutory provisions and without authority, in issuing the impugned circular, it is contended. 4.Per contra, on behalf of the State of Kerala, the Registrar of Co-operative Societies, the State Information Commission and the contesting private respondents, it is argued that the applicability of RTI Act to societies cannot be excluded in terms of the clear provisions contained in the RTI Act and that WPC.18175/06 & con. Cases Page numbers the provisions available in the KCS Act and Rules thereunder is no answer to exclude the applicability of the RTI Act. It is further argued that there is no ambiguity in the RTI Act and the same has to be interpreted to give effect to that Act. It is further argued that at any rate, having regard to the definition of 'information' in Section 2 (f) of the RTI Act, the access to information in relation to societies cannot be denied. Is the right to information in relation to co- operative societies available under the RTI Act? 5. Section 3 of the RTI Act states that subject to the provisions of that Act, all citizens shall have the right to information. Section 2 (f) of the RTI Act which defines 'information' reads as follows: “Information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks,contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be WPC.18175/06 & con. Cases Page numbers accessed by a public authority under any other law for the time being in force. 6.Going by the afore-quoted, information relating to any private body, which can be accessed by a public authority under any other law for the time being in force is information. The definition of the word 'information' as provided in Section 2 (f) has also to be applied to the word 'information' occurring in that clause itself. Therefore, information relating to any private body which can be accessed by a public authority includes all materials in any form which are enumerated before the use of the conjunction 'and' before the word 'information' occurring in Section 2 (f), in relation to private bodies. 7.It is the contention of the petitioners themselves that the provisions of the KCS Act and Rules empower access to information, following those rules. This is so, pithily because the statutory powers under the KCS Act and KCS Rules are WPC.18175/06 & con. Cases Page numbers available to the Registrar of Co-operative Societies, appointed by the Government under Section 3 (1) of the KCS Act and to all other officers on whom the powers of the Registrar are conferred by the Government in exercise of statutory authority under section 3 (2) of that Act and to different officers in the hierarchy of the executive establishment on whom powers are conferred or delegated by or under the KCS Act and KCS Rules. Those authorities are, beyond doubt, public authorities for the purpose of the RTI Act, they being personnel of the government service establishment, which is established and constituted by or under the Constitution and the laws made by the State Legislature, including the Kerala Public Services Act, 1968. Over and above that, different provisions in the KCS Act and Rules provide for audit, enquiry, supervision, inspection, surcharge proceedings, power to compel production of documents etc. These provisions indisputably and unequivocally empower the different officers of the Co- operative Department in the Government to access information WPC.18175/06 & con. Cases Page numbers as defined in Section 2 (f) of the RTI Act in so far as they relate to any co-operative society. 8.Unlike in the Freedom of Information Act, 2002, hereinafter referred to as the ‘FOI Act’ (which stands repealed as per Section 31 of the RTI Act), in the RTI Act, “information” means materials in any form, including the different types and modes noticed in the definition of that term in Section 2(f) and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. For the purpose of the FOI Act, going by Section 2(b) thereof, “information” meant any material in any form relating to the administration, operations or decisions of a public authority. This change in the amplitude of the statute law relating to the field of freedom, right and access to information is noticed to conclude forthwith that even if societies are to be treated only as private bodies, in view of the availability of different provisions under various other laws in force, including the KCS Act and the KCS Rules providing access to WPC.18175/06 & con. Cases Page numbers information relating to any society by public authorities, such accessible information would fall within the term “information” for the purpose of the RTI Act. 9.Therefore, even if a co-operative society is a private body, any person who desires to obtain any information in relation to a society, is entitled to move the competent public authority and such information in relation to a society would then be accessible through that public authority, unless the access to such information is forbidden by the RTI Act. Access to information is therefore available to citizens in relation to all co-operative societies, in terms of the RTI Act. Are the co-operative societies “public authorities” for the purpose of the RTI Act, to be compelled to perform the statutory duties imposed through the provisions of the RTI Act, occurring in Chapter II of that Act, particularly Sections 4 to 11 thereof? WPC.18175/06 & con. Cases Page numbers 10. Since it was pointed out that Section 2(h) of RTI Act, which defines “public authorities”, has been erroneously quoted in certain publications, that provision, as available in the Gazette of India is extracted hereunder: “public authority” means any authority or body or institution of self-government established or constituted- (a) by or under the Constitution; (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 appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government; WPC.18175/06 & con. Cases Page numbers 11. The incidence of registration of a society under the KCS Act is that such registration shall render it a body corporate by the name under which it is registered, having perpetual succession and a common seal and with power to hold property, enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purpose for which it was constituted. This provision in Section 9 of the KCS Act read with the provisions in Chapter X of that Act would show that societies are not institutions or establishments constituted under that Act. Sections 71 to 73 provide for winding up of a society and the modalities therefor. The effect of cancellation of registration under Section 74 is that the status as a corporate body is lost. The final authority of a society vests in the General Body of its members in terms of Section 27 and the General Body constitutes a committee to be entrusted with the management of the affairs of the society in terms of Section 28 of the KCS Act. These provisions, put generally, would show that societies are not established or constituted by or under the KCS Act or Rules. Therefore, they WPC.18175/06 & con. Cases Page numbers do not fall under sub clauses (a) to (d) of clause (h) of Section 2 of the RTI Act. 12.The question that then arises would be as to whether societies would fall under those governed by the expansive limb of Section 2 (h) of the RTI Act, whereby, public authority includes any of those which fall under sub clause (i) and (ii) in the inclusive components of Section 2 (h). 13.Here, the argument on behalf of the petitioners is that the said portion of Section 2 (h) is wrongly worded and as it now stands, admits of multifarious interpretations. It is argued that the words “directly or indirectly by funds provided by the appropriate Government” in the last limb of Section 2 (h) are essentially vague. It is pointed out that if those words are placed following sub clause (i), it would amount to reading that the definition of public authority envisages even control of bodies by funds provided by the appropriate Government. It is argued that this is plainly illogical. Next, it is argued that if WPC.18175/06 & con. Cases Page numbers the afore-quoted words really refer only to financing, the word 'substantially' has no fixed meaning and in the absence of any yardstick being prescribed in the RTI Act, as regards the extent of financing envisaged by the legislature to rope an institution into that Act, there is every likelihood of abuse of power by the authorities under that statute by misuse of the provisions thereof. 14.Responding, on behalf of the Government and, in particular, the State Information Commission, it was pithily argued that having regard to the provisions commencing from Section 3 of the RTI Act and the rights and obligations created thereby, even if the question calls for a contextual construction, that needs to be done using the legislative prescription that the definition clause in Section 2 of that Act applies only unless the context otherwise requires. It is contended that having regard to the purpose of the RTI Act and the goal sought to be achieved by the said piece of legislation, any deficiency which may be pointed out on a strict but apparently plain reading of WPC.18175/06 & con. Cases Page numbers the provisions of Section 2 (h) in the definition clause by applying the punctuations, as used in the statute, has necessarily to give way to a purposive construction; if required, by judicially punctuating the contents of Section 2 (h). 15. The appropriate Government, going by Section 2 (a) of the RTI Act, is the Central Government or the State Government, where that term is used in relation to a public authority, which is established, constituted, controlled or substantially financed by funds provided directly or indirectly by the Central Government/Union territory administration or by the State Government, as the case may be. 16.In People's Union for Civil Liberties v. Union of India [(2003) 4 SCC 399], it was noticed that in the Constitution of our democratic Republic, among the fundamental freedoms, freedom of speech and expression shines radiantly in the firmament of Part III. This cherished freedom has grown from WPC.18175/06 & con. Cases Page numbers strength to strength in the post-independence era and has been constantly nourished and shaped to new dimensions in tune with the contemporary needs by the constitutional courts. Pointing out that State of U.P. v. Raj Narain [(1975)4 SCC 428] is, perhaps, the first decision which has adverted to the “right to information”, Mathew J was quoted - “The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security” and that “in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a pubic way, by their pubic functionaries.” In S.P.Gupta v. Union of India [(1981) Suppl.SCC 87], the Apex Court noted that “the concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a)” WPC.18175/06 & con. Cases Page numbers and “therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception........”. It was emphasised that no democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. After referring to Raj Narain and S.P.Gupta (supra), the Apex Court made further reference in PUCL (supra) to Dinesh Trivedi v. Union of India [(1997)4 SCC 306] noticing that in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare and that like all other rights, even this right has recognised limitations and is, by no means, absolute. 17.We, the People of India have constituted ourselves into a democratic Republic; that Nation and her People, being governed by the Constitution of India. Democracy requires an WPC.18175/06 & con. Cases Page numbers informed citizenry and transparency of information that are vital to its functioning. Availability of information is necessary to contain corruption. The instrumentalities which meddle with public funds or with the interest of the citizens are to be made accountable. In actual practice, revelation of information 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. It is necessary to harmonise these conflicting interests while preserving the paramount status of the democratic ideal. The RTI Act is enacted in this constitutional backdrop. The object sought to be achieved by that enactment is to provide for setting out the practical regime of right to information for citizens to secure access to information. The purpose of that is to promote transparency and accountability in the working of every public authority. The RTI Act is a mode to access information. What may come out ultimately could be the assurance that all is well; or should be shocking revelations which may call for WPC.18175/06 & con. Cases Page numbers appropriate action. This again, would be a matter of concern for the citizenry. 18.As already noticed, the right to information and, therefore, the right of access to information are species of fundamental rights referable to the freedom of speech, enumerated in the Constitution as a fundamental right. This conceptualization is part of the law laid by the Apex Court in the precedents noted above. They are therefore part of the law of the land as emanating from the Constitution, that too, from Part III itself. Effectuation of the fundamental rights does not require any legislation. It inheres unitarily in every citizen and collectively in the citizenry, as a lot. Legislation can be to effect restrictions on the enjoyment of the fundamental rights; to the extent restrictions are permissible within the constitutional parameters. Or, legislations could provide for the free and orderly flow of the modality for the enjoyment of those rights. While the former is a restrictive covenant on the enjoyment and could affect only those who are entitled to enjoy, the latter WPC.18175/06 & con. Cases Page numbers class of legislative provisions are intended to provide the procedure to reach at the guaranteed fundamental rights, hassle-free. 19. Analysing the RTI Act with the aforesaid in mind, it can be seen that the provision in section 3 thereof that subject to the provisions of that Act, all citizens shall have the right to information, is the legislative recognition of the constitutional right of every citizen to information, including the right to access information. The provisions in the RTI Act, subject to which the citizen could enjoy the right to information, are laws amounting to restrictions made by the Parliament on the right to information and the right to access information, and therefore, restrictions on the freedom of speech. The legitimacy of any such restriction has to answer the constitutional touchstones. The authority to make such restriction is provided for and controlled by Article 19(2) of the Constitution. The said provision enumerates the grounds on which a restriction could be imposed by law on the citizens’ WPC.18175/06 & con. Cases Page numbers fundamental right to freedom of speech and expression. The authorization to make law imposing reasonable restrictions on that fundamental right is confined to be only in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Unlike in clause (6) of that Article which carves out the limits of legislative permissiveness to impose restrictions on the fundamental right to the freedom to practice any profession or to carry on any occupation, trade or business, clause (2) of Article 19 does not provide the interest of the general public as a ground on which the right to freedom of speech and expression could be curtailed. This distinction is well established. See Sakal Papers (P) Ltd. V. Union of India [AIR 1962 SC 305]. Unless justified under clause (2) of Article 19, any restriction on the fundamental right guaranteed by Article 19(1) (a) would be plainly violative of the freedom of speech and expression, a valuable and cherished fundamental right. The parliamentary presentment WPC.18175/06 & con. Cases Page numbers through the RTI Act is not a statutory conferment of a right that could be passed off as merely a statutory right. For, legislation cannot whittle down a fundamental right guaranteed under the Constitution. 20.Apart from the restrictions imposed by its provisions on the right to information inclusive of the right to access information, which restrictions operate against the conferee of that fundamental right, namely, the citizen, the RTI Act is, as its preamble declares, enacted to provide the practical regime of right to information for citizens to secure access to information. 21. The aforesaid and the legislative declaration contained in Section 3 of the RTI Act that all citizens shall have the right to information, have to be borne in mind while interpreting the provision “substantially financed by funds provided directly or indirectly” in Section 2(a) and the provision “substantially financed, directly or indirectly by funds provided by the WPC.18175/06 & con. Cases Page numbers appropriate Government” as contained in Section 2 (h), of the RTI Act. “Provide” means to make ready before hand; to supply; to procure supplies, means or what may be desirable; make provision. When one proceeds to provide, the intention is not necessarily that he provides from himself or from his own bag exclusively. If you provide something that someone needs or wants, or if you provide them with it, you give it to them or make it available to them. If you provide for someone, you support them financially and make sure that they have the things that they need. If you provide for something that might happen or might need to be done, you make arrangements to deal with it. The provisions under interpretation relate to those which are substantially financed by funds which are made available to them by the Government. It is sufficient that the funds reach a society as a result of the actions taken by the Government, thereby making available, the necessary finance that is required for the society for its activities. The essence of the act of providing is the making available of what is required to be provided. In this view of the WPC.18175/06 & con. Cases Page numbers matter, “funds provided by the appropriate Government” 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