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Thalappalam Ser. Coop. Bank Ltd. v. State of Kerala

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    October 3, 2013
  • Outcome
    Decision Outcome (Disposition/Ruling), Access to Information Denied
  • Case Number
    Civil Appeal No. 9017
  • Region & Country
    India, Asia and Asia Pacific
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Administrative Law
  • Themes
    Access to Public Information
  • Tags
    Commercial Confidentiality, RTI law, Privacy

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Case Analysis

Case Summary and Outcome

The Supreme Court of India held that a co-operative society registered under the Kerala Co-operative Societies Act was not bound by the country’s Right to Information (RTI) Act to provide information sought by a citizen and that the Society did not fall within the definition of “public authority” under the RTI Act. The Applicant had requested information relating to the bank accounts of certain members of the Mulloor Rural Co-operative Society Ltd.  The Court reasoned that co-operative societies neither met the threshold of control by government required under the definition of “the State” in Article 12 of the Constitution nor were “substantially financed” by the government so as to qualify as a “public authority” under the RTI Act. In balancing the Applicant’s right to disclosure against the privacy rights of the Society’s members the Court reasoned that the information was personal and did not relate to any public activity or interest, so the public authority or officer was not obliged to comply with the request.

This case analysis was contributed by Right2Info.org.


Facts

In May 2007, the Applicant requested information under India’s Right to Information (RTI) Act relating to the bank accounts of certain members of the Mulloor Rural Co-operative Society Ltd. The Society refused to grant access to the  information due to its confidential nature and also argued that it would be a violation of “commercial confidence.” Moreover, it was pointed out that the information had no relationship to any “public activity” conducted by the Society. However, the State’s Information Officer decided that the non-disclosure violated mandatory provisions of the RTI Act and rendered the Society liable to be punished for non-compliance.  In its decision, the State Information Officer relied on a circular note issued by the Registrar of Co-operative Societies which established administrative control over all Societies as “public authorities” falling under the Section 2(h) of the RTI Act.

The Co-operative Society filed a writ petition with the High Court challenging the order of the 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 the RTI Act. Several appeals, revoking the decision and adopting reserved views on the definition of “public authority” followed before a submission came before a full bench. The bench gave a liberal interpretation of public authority, which was capable of covering co-operative societies and thus, an obligation to comply with the RTI Act.

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


Decision Overview

In order to answer questions presented before it, the Court began by examining the status of co-operative societies under the Constitution. Namely, whether they might fall under the definition of “the 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 to societies does not meet the required threshold, that is, it is not “deep and all pervasive” and therefore cannot be considered within the expression “State” under Article 12. However, the Court said that co-operative societies are still capable of satisfying the definition of public authority.

The Court went on to consider the RTI Act, which provides for citizens’ right to access information “under the control of public authorities.” The definition of “public authority” is provided under Section 2(h) of RTI Act. The Court established that the essential part of the provision applicable in the case before it referred to the control or “substantial funding” of an institution or non-governmental organization. In this respect the Court first outlined the test required for the establishment of “control.” Its analysis of case-law lead to the 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 the RTI Act.”

Subsequently, the Court engaged in defining the term “substantially financed” where financing might be direct or indirect. Citing the case of Palser v. Grimling (1948) 1 All ER 1, 11 (HL), the Court said that the term cannot be interpreted using a de minimis approach, and that the financing must be “actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable.” The Court also noted that the State may provide schemes for welfare projects, but said that unless the funding was so substantial that the body “would struggle to exist” without it, the relevant provision could not be engaged.  Thus “merely providing subsidiaries, grants, exemptions, privileges” did not satisfy the requirement. The Court said that schools getting 95% grant in aid from government was an example of substantial funding.

As for NGOs, the Court stated that, even in the absence of statutory control, it is possible to establish that an NGO has been substantially financed directly or indirectly by governmental funds. The latter would bring those organizations within the definition of “public authority”.

Furthermore, the Court ruled that the onus of proof to show that a body is owned, controlled or substantially financed or that an NGO 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 Officer, State Chief Information Commission, Central Public Information Officer etc., when the question comes up for consideration.

Lastly, the Court engaged in balancing the 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 the request.

Applying all these criteria to the circumstances of the case, the Court concluded that co-operative societies registered under the Co-Operative Societies Act would not be considered as “public authorities”, because it cannot be shown that they are “owned, controlled or substantially financed “ by the government.


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • India, Right to Information Act 2005, sect. 2
  • India, Const., art. 12
  • India, Uttar Pradesh State Co-operative Land Development Bank Limited v. Chandra Bhan Dubey and others, (1999) 1 SCC 741
  • India, All India Sainik Schools employees’ Association v. Defence Minister-cum-Chairman Board of Governors, Sainik Schools Society, New Delhi and others, (1989) Supplement 1 SCC 205
  • India, Executive Committee of Vaish Degree College, Shamli and Others v. Lakshmi Narain and Others, (1976) 2 SCC 58
  • India, Federal Bank Ltd. v. Sagar Thomas and Others, (2003) 10 SCC 733
  • India, S.S. Rana v. Registrar, Cooperative Societies and another, (2006) 11 SCC 634
  • India, Delhi Development Authority v. Bhola Nath Sharma (Dead) by LRs and others, (2011) 2 SCC 54
  • India, State of West Bengal and another v. Nripendra Nath Bagchi, AIR 1966 SC 447
  • India, Corporation of the City of Nagpur Civil Lines, Nagpur and another v. Ramchandra and others, (1981) 2 SCC 714
  • India, The Shamrao Vithal Cooperative Bank Ltd. v. Kasargode Pandhuranga Mallya, (1972) 4 SCC 600
  • India, State of Mysore v. Allum Karibasappa & Ors., (1974) 2 SCC 498
  • India, Madan Mohan Choudhary v. State of Bihar & Ors., (1999) 3 SCC 396
  • U.K., Palser v. Grimling, (1948) 1 All ER 1
  • U.K., Magor and St. Mellons Rural District Council v. New Port Corporation, (1951) 2 All ER 839(HL)
  • India, D.A. Venkatachalam and others v. Dy. Transport Commissioner and others, (1977) 2 SCC 273
  • India, Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907
  • India, Bennett Coleman & Co. v. Union of India, [1973] 2 S.C.R. 757
  • India, Union of India (UOI) v. Respondent: Association for Democratic Reforms and Another; with People's Union of Civil Liberties (PUCL) and Another v. Union of India (UOI) and Another, 2002 (3) SCR 294
  • India, People's Union of Civil Liberties (PUCL) v. Union of India, (2003) 2 S.C.R. 1136
  • India, Girish Ramchandra Deshpande v. Central Information Commissioner and others, (2013) 1 SCC 212

Case Significance

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The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision was cited in:

Official Case Documents

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