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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Thalappalam Ser. Coop Bank Vs. State of Kerala (2013) 16 SCC 82

ashakantasharma

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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005

By Shailesh Gandhi,
Former Central Information Commissioner

 

Judgment : Thalappalam Ser. Coop Bank Vs. State of Kerala (2013) 16 SCC 82

The issue before the Court: Whether a co-operative society falls within
the definition of "public Authority" under Section 2(h) of the RTI Act
and be bound by the obligations to provide information sought for by a
citizen under the RTI Act.

The observations of the Court:
Para 37: “We often use the expressions “questions of law” and
“substantial questions of law” and explain that any question of law
affecting the right of parties would not by itself be a substantial question
of law. In Black's Law Dictionary(6th Edn.), the word 'substantial' is
defined as 'of real worth and importance; of considerable value;
valuable. Belonging to substance; actually existing; real: not seeming or
imaginary; not illusive; solid; true; veritable. Something worthwhile as
distinguished from something without value or merely nominal.
Synonymous with material.' The word 'substantially' has been defined to
mean 'essentially; without material qualification; in the main; in
substance; materially.' In the Shorter Oxford English Dictionary (5th
Edn.), the word 'substantial' means 'of ample or considerable amount of
size; sizeable, fairly large; having solid worth or value, of real
significance; sold; weighty; important, worthwhile; of an act, measure
etc. having force or effect, effective, thorough.' The word 'substantially'
has been defined to mean 'in substance; as a substantial thing or being;
essentially, intrinsically.' Therefore the word 'substantial' is not
synonymous with 'dominant' or 'majority'. It is closer to 'material' or
'important' or 'of considerable value.' 'Substantially' is closer to
'essentially'. Both words can signify varying degrees depending on the
context.

Para 38. “Merely providing subsidiaries, grants, exemptions, privileges
etc., as such, cannot be said to be providing funding to a substantial
extent, unless the record shows that the funding was so substantial to the
body which practically runs by such funding and but for such funding, it
would struggle to exist. The State may also float many schemes
generally for the betterment and welfare of the cooperative sector like
deposit guarantee scheme, scheme of assistance from NABARD etc., but
those facilities or assistance cannot be termed as “substantially
financed” by the State Government to bring the body within the fold of
“public authority” under Section 2(h)(d)(i) of the Act.”

The Court held that: Cooperative Societies registered under the Kerala
Co-operative Societies Act will not fall within the definition of "public
Authority" as defined under Section 2(h) of the RTI Act unless they are
substantially financed. The Court ruled that Cooperative Societies are
not Public authorities covered in RTI unless they are substantially
financed. It defined the word substantial finance thus:

The Court after looking at the various dictionary meanings-‘material’,
‘important’, ‘of considerable value’, ‘not illusive’ decided that it means
essential only, when it says, 'Substantially' is closer to 'essentially' .
It further said at para 38. “Merely providing subsidiaries, grants,
exemptions, privileges etc., as such, cannot be said to be providing
funding to a substantial extent, unless the record shows that the funding
was so substantial to the body which practically runs by such funding
and but for such funding, it would struggle to exist. The State may also
float many schemes generally for the betterment and welfare of the
cooperative sector like deposit guarantee scheme, scheme of assistance
from NABARD etc., but those facilities or assistance cannot be termed
as “substantially financed” by the State Government to bring the body
within the fold of “public authority” under Section 2(h)(d)(i) of the Act.
But, there are instances, where private educational institutions getting
ninety five per cent grant-in-aid from the appropriate government, may
answer the definition of public authority under Section 2 (h)(d)(i)”

Effectively this states that the finance must be essential to its
functioning that it would struggle to exist without it.

No Information provided.

Our analysis of the judgment:
The conclusion of the court that cooperative societies are not public
authorities unless they are substantially financed is correct. However in
defining the phrase ‘substantial finance’ it appears to have narrowed the
scope of the RTI act by claiming that ‘substantial finance’ means
‘essential’ finance without which the body would struggle to exist.
Thus even if a NGO or private body receives 100 crores annually it may
not be deemed to be substantially financed if its total budget is around
500 crores and it argues that the amount from the Government is not
essential for its working. The Court did not choose the words ‘material,
important, of considerable value, not illusive’ which would have
expanded the scope of the Act. Whereas its ruling that a Cooperative
society does not automatically become a public authority appears right,
its ruling on the words ‘substantial finance’ appears to constrict the
ambit of the law, far more than what it should.
 

satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf



1 Comment


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manoj kamra

Posted

Sir, existance of cooperative society on the govt will be very important in deciding cases of numerous such mushrooming socieites by political leaders getting works exclusively from the govt without any tendering at double the prevailing rates.

 

In my humble opinion, this judgment can be useful in such mushrooming socieites.

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