Do Cooperative Societies Come Under RTI Act?

Above question came up in Kerala where the Registrar of Cooperative Societies in 2006 issued a circular and brought all cooperative societies in Kerala under RTI. This was challenged in High Court. High Court’s judgment was further challenged in Supreme Court. Looking at the implication the judgement will have in all states, SC heard the case and gave its judgement on Oct, 2013. This article gives gist of Supreme Court judgement.

Right to Information Act (RTI)

The RTI Act is an Act enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority.

Public Authority As per RTI Act

The expression “public authority” is defined under Section 2(h) of the RTI Act, which reads as follows:

“2. Definitions._ In this Act, unless the context otherwise requires : (h) “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”

Does cooperative society under above definition of Public Authority.

Is Cooperative Society Public Authority ?

Societies are not Public Authority as defined above, because none of them is either a body or institution of self-government, established or constituted under the Constitution, by law made by the Parliament, by law made by the State Legislature or by way of a notification issued or made by the appropriate government.

Some of the Cooperative may still fall under Public Authority if

• A body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate government,
• Non-governmental organizations substantially financed directly or indirectly by funds provided by the appropriate government.

Is Cooperative Society A Statutory Body ?

Definition: “Society” means a co-operative society registered, or deemed to be registered, under Cooperative Society Act;

There is a clear distinction between a body which is created by a Statute (Cooperative Society Act) and a body which, after having come into existence, is governed in accordance with the provisions of a Statute.

Cooperative Societies fall under the later category that is governed by the Societies Act and are not statutory bodies, but only body corporate within the meaning of Section 37 of the Gujarat Cooperative Societies Act* having perpetual succession and common seal and hence have the power to hold property, enter into contract, institute and defend suites and other legal proceedings and to do all things necessary for the purpose, for which it was constituted.

Section 73 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 as provided under Section 74 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 Cooperative Societies or State Government.

* Act and Section changed to Gujarat Cooperative Society Act instead of Kerala Cooperative Act for ease of reference to readers.

Registrar of Cooperative Societies

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 those information from the Society, to the extent permitted by law.

Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the RTI Act. Only those 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 those information, Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(1)(j) of the RTI Act. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information, in a given situation, the society will have to part with that information. But the demand should have statutory backing.

Conclusion

RTI Act is not applicable to Housing / Commercial Cooperative Societies.

Reference

1. RTI Act, 2005
2. Supreme Court Judgement: Thalappalam Ser.Coop.Bank Ltd.& … vs State Of Kerala & Ors on 7 October, 2013
3. Gujarat Co operative Societies Act, 1961