Legislative Procedures on Law, Rule and Delegated Legislation

(By V.K.Babu Prakash, Secretary, Kerala Legislative Assembly)

Law is the body of principles, recognised and applied by the State for the administration of justice. The important sources of law are legislation, judicial precedent, customary law and convention. The term ‘legislation is derived from the Latin word ‘Legis Latio’ meaning bringing or proposing of a law. It is the process of making or enacting laws. In otherwords, legislation is the exercise of the power and function of making laws that have the force of authority by virtue of their promulgations by the sovereign State or other organisation. Two broad categories of legislation are supreme legislation and subordinate legislation. Supreme legislation proceeds from supreme or sovereign power like Parliament or State legislature incapable of being repealed, annulled or controlled by any authority. Subordinate Legislation proceeds from any authority other than the sovereign power and is dependent for its continued existence on some authority. The main- function of the legislature is making and enacting of laws. The Constitution of India lays out provisions for the enactment of the law by the Parliament in the Union level. Regarding State legislature, the Legislative Assembly makes law in a State. The law enacted by Parliament or State Legislature can be challenged before courts alleging ultra viresthe Constitution.

Principles of Legislation

The Legislation must be in consonance with the principles of natural justice. There are various theories holding on legislation and its effects. The utility theory exhorted by Jermi Bentham postulates that good legislation is the art of achieving maximum pleasure to the maximum number of the people.

Distribution of Legislative Powers

Territorial extend of Union and State Legislation:The State Legislation naturally suffers from a limitation to which Parliament is not subject, namely, that the territory of the union being divided amongst the States, has the power to legislate for any part of the territory of India [Article 246(4)]. A State Legislature can make laws for the whole or any part of the State to which it belongs [Article 245(1)]. The Parliament has the power of extra territorial legislation, which no State Legislature possesses. This means Parliament can enact law not only on persons and property within the territory of India but also on Indian subjects and their property situated anywhere in the world outside India.

Distribution of Legislative Subjects

The Constitution adopts a threefold distribution of legislative power between the Union and the States (Article 246), which is also called List I. There are 97 subjects over which the Union shall have exclusive power of legislation. It includes defence, foreign affairs, banking, insurance, currency and coinage, union duties and taxes. List II, which is also called State List comprising 59 items or entries over which the State Legislature shall have exclusive power of legislation. Those include Police, Local Self Government, Public Health and Sanitations, Agriculture, Fisheries, State Taxes and Duties. List III, also called Concurrent List empowers the Union and State to enact laws over 52 items. They are Criminal Law and Procedure, Civil Procedure, Marriage, Contracts, Torts, Trusts, Welfare of Labour and Education. Whenever there is overlapping of legislation, predominance is given to the enactment of Parliament. When there is repugnancy between a Union and State law relating to an entry in the Concurrent List, the law enacted by the Union prevails [Article 254(1)]. In order to determine whether a particular enactment falls under one entry or the other, generally the court before which such a law is challenged, applies ‘pith & substance’ principle. The principle is to find out the legislative competency of the State and the Union over the entry. If the legislature has no power to legislate over the entry, then the court finds repugnancy and holds that the State Legislation is only a ‘Colourable Legislation’. Therefore the Union law prevails over the State law.

Classification of Bills

1.  Government Bill: When a bill is presented in the house by a Minister it is called the Government Bill.

2.  Private Members Bill: When a bill is presented in the house by a member other than a Minister, it is called a Private Member Bill.

3.  Original Bills: Bills containing new proposals or policies are termed Original Bills.

4. Consolidating Bills: Bills aimed at consolidating existing laws on a particular subject are known as Consolidating Bills.

5.  Expiring Laws Bills: Bills providing for the continuation of an expiring Act are termed expiring laws Bills.

6.  Expiring laws bills or Ordinance replacing Bills: Bills seeking to replace ordinance are called Ordinance Replacing Bills.

7.  Constitution (Amendment) Bills: Bills seeking to amend the Constitution are known as Constitution Amendment Bills.

8.  Money Bills: Bills which exclusively contain provision for imposition, abolition, remition, alteration or regulation of taxes or for appropriation of money out of the consolidated fund etc. are classified as money bills.

9.  Financial Bills: Any of the matters which come within the definition of a money bill, but do not consist solely of those matters and those which, if enacted and brought into operation would involve expenditure from the Consolidated Fund of India.

Important features of a Bill

1.  Title: Every bill has a title succinctly describing the nature of the proposed measure that the bill aims at achieving. The title, generally referred as the long title is pre-fixed to the bill and retained in the Act and is different from short title.

2.  Preamble: Preamble is a clause at the beginning of a statute following the title and preceding the enacting clauses. The proper function of the preamble is to explain facts which are necessary for the purpose of understanding the Act. Earlier, the preamble was not considered part of the bill. Now it is a part of the bill, which is amenable for amendment.

3.  Enacting Formula: It is a short paragraph preceding the clauses of a bill.

4.  Short Title: It is merely a label or index heading to the enactment.

5.  Extent Clause: It is with respect to the area within which the Act is made applicable. Normally a law passed in the Parliament is applicable through out the country except, whether it otherwise expressly provided for in the Act itself.

6.  Commencement Clause: It is an important provision by which the Acts which are intended to take effect, at once need not usually have a commencement clause.

7   Interpretation of definition Clause: The clause usually comes after the short title or situation clause. The definitions are arranged in alphabetical order.

8.  Duration Clause: Certain laws are of limited duration which are enacted for a short stipulated period. Such enactment is not to be effective after the expiry of the period stipulated.

9.  Declaratory Clause: It declares or states the need or requirement which the law was framed to fulfill.

10. Rule making Clause: It contains the delegating power to the executive to make rules and regulations for administering the various provisions contained in the rule making clause of a bill.

11. Repeal and Savings: It is a provision both for repeal and savings which is placed at the end of the statute.

12. Schedules: Some Acts only have schedules. It contains illustration of forms, appending plans etc.

13.Statement of Objects and Reasons: It is an explanatory statement regarding the purpose of the proposed legislation. It helps understanding the necessity and scope of the bill. However, the Constitutional Courts may not rely on the statement of objects and reason to gather the intention of the legislation for the enactment.

14. Notes on Clauses: It is to explain the various provisions in a bill and their significance.

15. Memorandum Regarding Delegated Legislation: The Memorandum draws proposals for the delegation of subordinate legislative power to the authority concerned or Government Memorandum containing re-modifications in a bill to replace an ordinance. The purpose is to replace an ordinance with a modified bill for the introduction into the house.

Statutory Provisions for Legislation: Articles 107-111 and Articles 196-201 of the Constitution deal with the Legislative power of Parliament and State Legislative Assemblies respectively. Rules 66 to 106 of the Rules of Procedure and conduct of business of Kerala Legislative Assembly provide the procedure for legislation in the Kerala Legislative Assembly. Paragraphs 219-230 of the Kerala Secretarial Office Manual deal with putting of the files regarding legislation by the officers concerned of the administrative department of the Government. Rules of business of Government of Kerala provide the procedure for legislation through the administrative department concerned, the Department, Ministers, Chief Ministers and advices given by the Law Department on a legislation.

Drafting of Bills:The proposal for legislation comes from the department to which the subject matter of the Legislation relates. The Law Department will examine the competence of the State Legislature for the Legislation along with various Constitutional requirements like the need for obtaining the recommendation of Governor, it if is a Money Bill. The question regarding whether the proposed bill would be inconsistence with any of the provisions of the Constitution or relating to fundamental rights would also be examined. The Law Department gives its advice on the above matters as per Rule 45 of the rules of business. There after the administrative department would prepare a note for circulation to the Chief Minister, Minister concerned of the department and the Law Minister. When the Chief Minister agrees to the proposal and a policy decision is taken, the administrative department would draw a memorandum of instructions explaining the circumstances for the proposed legislation with a statement of objects and reasons. The Administrative department would also prepare the financial memorandum. Then it is sent to the Law Department for the preparation of the draft bill. When the draft bill has been approved by the Minister concerned, it would be circulated to the Chief Minister for placing it to the Cabinet of Ministers for approval. After the approval by the Cabinet, the draft would be forwarded to the Governor or to the President for approval if necessary. After obtaining the approval if needed, the bill would be sent back to the Administrative Department for final approval. The finally approved draft bill is then forwarded to the Secretariat of the Legislative Assembly by the Law Department for further action.

The enacting procedures followed at the Legislative Assembly Secretariat.

1. The Secretariat will scrutinise whether the bill contains a statement of object and reasons.

2. Whether recommendation and approval of the Governor is obtained.

3. Whether Constitutional requirements had been complied or not.

4. Whether the bill involves expenditure from public funds. If so whether it is printed in italics or not.

5. Whether the bill contains the financial memorandum and if so whether it is attached to the bill or not.

6. When a memorandum on subordinate legislation, if needed, has been appended to the bill.

7.  When a memorandum containing modification to the bill to replace an ordinance if needed has been appended to the bill. Whether correction carried out in the proof with the seal of the ministry of law.

Publication of bills before introduction

On a request made by the member in charge of the bill, the Speaker may order publication of the bill in the Gazette.

Introduction of Government Bills

A Minister who wishes to introduce a bill has to give seven day’s notice in writing of his intention to move for leave to introduce the bill. The Speaker can allow a shorter notice than 7 days. Copies of the bill have to be made available to members atleast 2 days before the day on which it is proposed to be introduced.

Motion after introduction of Bills

After introduction a motion can be moved by the member to refer the bill to the Select Committee or to a Joint Committee.

Motion for considerations

The member who is in-charge of the bill can move for a motion for consideration of the principle of the bill and its provisions. But at that stage, the details of the bill are not discussed other than its principles.

Circulation for eliciting public opinion

Member in-charge of the bill after introduction may move that the bill be circulated for electing public opinion, if the bill has got general importance of public.

Second reading of the Bill

After the introduction of the Bill or the Bill has been reported by the Select and Joint Committee, be taken into consideration by the house clause by clause. The Speaker may call each clause separately and when amendments relating to the particular clause are disposed of, then he puts the question of passing the bill clause by clause.

Third reading of the Bill

It is the final stage. When all the clauses and schedules of the bill have been considered and voted upon by the house, the member in-charge can move for the passing of the bill. No amendments except formal or consequential shall be adopted. Thereafter, the bill can be passed on the basis of voting. When the bill has been passed by the Assembly, it should be signed by the Speaker and presented to the Governor. The Governor may either assent to the bill, withhold his assent or return the bill, if it is not a money bill, with the message for reconsideration of the bill or any of the provisions. When the bill which was returned, has been reconsidered by the house, is again passed by the house with or without the modification suggested by the Governor, re­presented to the Governor, the Governor shall not withhold his assent to the bill. In the Kerala Legislative Assembly all the bills are to be introduced in Malayalam version. Prior permission of the Speaker is necessary for introducing bill in English version.

Private Members Bill

Any member of the Legislative Assembly other than the minister can introduce a bill into the Assembly. Such a member shall draft the bill and forward it to the Legislative Secretariat for scrutiny. Thereafter the bill should be introduced in the manner, like a government bill is introduced.

Ordinance

The President or the Governor has got legislative power to promulgate ordinance under Article 123 & 213 of the Constitution. When the house is not in session and the President or Governor is satisfied that circumstance exists, which is necessary for him to take immediate action, he can promulgate ordinance on the advice of the council of Ministers, which is then approved by the Cabinet. It would not be sent to the Assembly Secretariat like the drafted bill. The ordinance approved by the Cabinet shall be signed by the Governor which shall be notified in the gazette. The ordinance lapses at the expiry of six weeks from the date of re-assembly of Parliament or Legislative Assembly.

Subordinate Legislation

Subordinate Legislation is an important area in the Administrative Law. In the modern concepts of a welfare State, Governmental activity has expanded in various walks of law and the executive machinery has to issue Rules and Orders to catch up with the needs of the people. Delegated legislation in India is generally expressed as statutory Rules and Orders. The term rule is defined in the General Clauses Acts, 1897 as a rule made in the exercise of a power conferred by any enactment and shall include a rule made under any enactment and shall include a rule made under any enactment. Often Legislature passes statutes that set out broad outlines and principles, and delegates authority to an executive branch official to issue delegated legislation. The purpose of delegated legislation is to provide the procedural recommendations for implementing the substantive provisions of the statute. It is also called ‘colourable legislation’. Generally, a subordinate legislation other than a rule is always called Government notification or SRO. It is published in the gazette having the Government Order No. & date on its top. The numbering of all SROs is done on year basis. The name of the parent Act by the section which confers the power to make the rule is mentioned before the first rule. The first rule shall be a short title and a commencement of rules. The Government SRO shall contain an explanatory note. Although it does not form part of a notification, yet it would explain the object of the rule or notification. As per paragraph 250 of the Kerala Secretariat Office Manual, the statutory rules are provided by the Administrative Department concerned itself. The drafted rule shall be forwarded to the Law Department for scrutiny. In addition to the scrutiny of Law Department, the notifications issued under the Public Services Act have to be scrutinized by the personal and administrative reforms department as well. The draft shall be placed before the Cabinet of Ministers under paragraph 251. There shall also be a consultation with Kerala Public Service Commission in the matter of notification issued under a Public Services Act. Subordinate Legislation has been controlled by the Judiciary and Legislative Assembly.

Controlled by Judiciary

A Subordinate Legislation can be challenged before the appropriate court of law. The court ‘usually looks into the competency of the provision to see whether it is consistent with the parent Act. There are two tests adopted by the courts for deciding the validity of a Subordinate Legislation. The first is Ultra Vires, which means as beyond powers. If the Subordinate Legislation is beyond the authority, then it becomes Ultra vires. If the parent Act itself is Ultra Vires, the Constitution, then obviously, the Subordinate Legislation also would become Ultra Vires. If there is procedural non-compliance then also the court strikes down the Subordinate Legislation. Gazette publication and consultation are the two main procedural requirements prescribed for Subordinate Legislation.

Parliamentary or Legislative Control

The Parliament and Legislative Assembly have constituted three committees for Legislative scruitiny of Subordinate Legislation. They are subject committee, Committee on Subordinate Legislation and Committee on Papers Laid on Table. Subject Committee considers rules at the draft stage and approves it with or without amendment. The committee on Subordinate Legislation scruitinises the rules, regulation, first statute after they have been notified. A Minister cannot become a member of the Committees. The committee on Papers laid on the table examines the Subordinate Legislation laid on the table of the house and reports to the house on, whether there had been compliance of the provisions of the Constitution or any other Act. The committee also looks into, whether there has been any undue delay in laying the paper and whether the statement explaining the delay also has been laid on the table.

Before 1957, there was no laying on table procedure regarding Subordinate Legislations in Kerala. Now, uniformity had been achieved in the laying procedure. As per Rule 166 of the rules of procedure and conduct of business in the Kerala Legislative Assembly, all the Subordinate Legislations framed in furtherence of the Constitution or any Act, shall be laid before the Legislative Assembly for the period specified in the Constitution or the relevant Act. If the relevant Act does not specify the period, it shall be laid before the Legislative Assembly for a period of 14 days. When the specified period is not completed on any one session, it should be relied in the succeeding session until 14 days are completed. The laying is done by the Minister concerned, who is in-charge of the Administrative Department. A member can give notice for amendment on the Subordinate Legislation. The Speaker will fix the time for consideration of the amendment. If the rule is amended, the amended rule shall be laid on the table. 

University Ombudsman Still an Unborn Baby

(By Ajay R. Kamath, Advocate, Trivandrum)

In Kerala, we are very much familiar about the concept of “Ombudsman”. We have seen ombudsman for Local Self-government Institutions, Banking, Insurance, Electricity and for Co-operative Societies. But how many of us are aware that it is mandatory for each and every university to have an Ombudsman.

The University Grants Commission in 2013 came out with a regulation called UGC (Grievance Redressal) Regulations, 2012 with an aim to redress the grievances and to uplift the overall standard of higher education in the country. The regulation proposes to establish a two tier mechanism which consists of a Grievance Redressal Committee at the college/regional level and Ombudsman as its Appeal Authority.

Who will be Ombudsman?

The Regulation prescribes that, the Ombudsman must be a person who has been a judge not below the rank of a District Judge or a retired professor who has at least ten years’ experience as a professor.

Mode of appointment

The Ombudsman in a State University must be appointed from a panel of three names recommended by the search committee consisting of nominee of the Governor of the State as Chairman; two Vice-Chancellors from public Universities of the State, nominated by the State Government as members; one Vice-Chancellor from private university of the State, nominated by the State Government as member and Higher Education Secretary of the State as the member and Convener.

Purpose of the Ombudsman

Ombudsman serves as a platform for aggrieved students to register their complaints or grievances, regarding the following;

* Admissions taking place contrary to the merit determined in accordance with the institute’s declared policy.

* Making admission contrary to merit determined in accordance with the declared admission policy of the institute.

* Irregularity in the admission process adopted by the institute.

* Refusing admission in accordance with the declared admission policy of the institute.

* Non publication of prospectus, as specified.

* Publishing any information in the prospectus, which is false or misleading, and not based on facts.

* Withhold or refuse to return any document in the form of certificates of degree, diploma or any other award or other document deposited with it by a person for the purpose of seeking admission in such institution, with a view to induce or compel such person to pay any fee or fees in respect of any course or program of study which such person does not intend to pursue.

* Demand of money in excess of that specified in the declared admission policy or approved by the competent authority to be charged by such institution.

* Breach of the policy for reservation in admission as may be applicable.

* Complaints, of alleged discrimination of students, from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Women, Minority or Disabled categories.

* Non-payment or delay in payment of scholarships to any student that such institution is committed, under the conditions imposed by University Grants Commission, or by any other authority.

* Delay in conduct of examinations or declaration of results beyond that specified in the academic calendar.

* On provision of student amenities as may have been promised or required to be provided by the institution.

* Denial of quality education as promised at the time of admission or required to be provided.

* Non transparent or unfair evaluation practices.

* Harassment and victimisation of students, including sexual harassment.

How it will function

* Each University/Institution shall establish a registry, headed by an employee of the institute of appropriate rank as the Ombudsman may decide where any aggrieved student or person may make an application seeking redressal of grievance.

* On receipt of an application by the registry, the employee-in­charge shall inform the Ombudsman. The registry shall immediately provide a copy to the institution for furnishing its reply within seven days.

* The Ombudsman shall fix a date tor hearing the complaint which shall be communicated to the institute and the aggrieved person either in writing or electronically, as may be feasible.

* An aggrieved person - may appear either in person or represented by such person as may be authorised to present his case.

* The Ombudsman shall be guided by the principles of natural justice while hearing the grievance.

* The Ombudsman shall ensure disposal of every application as speedily as possible and not later than a month of receipt of the grievance.

* The institution shall co-operate with the Ombudsman in redressal of grievances and failure to do so may be reported by the Ombudsman to the U.G.C.

* On the conclusion of proceedings, the Ombudsman shall pass such order, with reasons for such order, as may be deemed fit to redress the grievance and provide such relief as may be desirable to the affected party at issue.

* The institution shall comply with the order of the Ombudsman, failing in which it shall be reported to the U.G.C.

Consequences of non-compliance

If any University wilfully contravenes or repeatedly fails to comply with orders of the Ombudsman, then it shall be reported to the U.G.C. and U.G.C. may proceed to take following actions, namely:-

a) withdrawal of declaration of fitness to receive grants under Section 128 of the Act;

b) withholding any grant allocated to the Institution;

c) declaring the institution ineligible for consideration for any assistance under any of the general or special assistance programs of the Commission;

d) informing the general public, including potential candidates for admission, through a notice displayed prominently in the newspapers or other suitable media and posted on the website of the Commission, declaring that the institution does not possess the minimum standards for redressal of grievances;

e) recommend to the affiliating university for withdrawal of affiliation, in case of a college;

f) recommend to the Central Government for withdrawal of declaration as Institution deemed to be university, in case of an institution deemed to be university;

g) recommend to the appropriate State Government for withdrawal of status as university in case of a university established or incorporated under a State Act;

h) taking such other action within its powers as the Commission may deem fit and impose such other penalties as may be provided in the Act for such duration of time as the institution complies with the provisions of the U.G.C. Regulations

.

Status in our Universities

It has been 4 years and 7 months since the U.G.C.(Grievance Redressal) Regulations came into force but none of the Universities in the State has appointed an Ombudsman, even after a directive from the U.G.C. The Ombudsman in our Universities will indeed help to curb the current unfair practises which are currently occurring in our State. It is pertinent to note that a proposal for appointing an Ombudsman in University of Kerala and Cochin University of Science and Technology are within the consideration of the State Government and a favourable action is expected soon.

Service of Summons on Defendants

(By V.MB. Nambisan, Advocate, Taliparamba)

1.  Recently, in Arundas v. Priji,reported in 2017 (4) KLT 1060, Our Hon’ble High Court (Division Bench) held that “service of notice on a defendant can be done by service on an adult member of his family who is residing with him only if it is specifically so ordered by the Court (para.20) under Order V Rule 15 of the Civil Procedure Code (for short CPC). The observations that “the unexpendable imperative for courts to ensure valid and proper service of summons and notices to defendants in a suit and other proceedings can never be overstated” and that “proper service of summons is a fundamental rule of procedure” are all well said. As such, the captioned subject invites a detailed discussion.

2.  Section 27 of C.P.C. says that “summons shall be served in the prescribed manner”. The manner is prescribed in Order V of C.P.C. and in Civil Rules of Practice (for short CRP) Rules 75 to 80.

Order V Rules 11 and 12 of CPC read together spell out that summons shall be served on each defendant in person.

Order Rule 12 (second part) read with Rules 13 and 14 deal with service of summons on Agents of defendants.

Order V Rule 15 deals with service of summons on an adult member of defendant’s family. Rules 16 to 19 deal with the procedure to be followed in the matter of service of summons on Agents, adult members etc. C.R.P. Rules 75 to 80 set out the procedure to be followed by the Serving Officer to effectuate service of process.

4. There is an all-important directive to the court in Order V Rule 19 that when summons is effectuated “the Court shall declare that summons has been duly served. This is indispensable because Order IX Rule 6 says that “when it is proved that summons was duly served on defendant, if he is absent on the date of hearing, he shall be set ex parte and if not duly served a second summons shall be issued.

The above directive is common to service of summons under Order V Rules 11 to 18.

5. A close study of the above provisions will convince us that Order V Rules11 to 19 and C.R.P. Rules 75 to 80 have to be considered together. One rule cannot be chiselled out and commented upon separately.

6. Now let us find out whether service of summons on an adult member of the family of defendant who resides with him can be served only on a specific order of the Court to that effect.

i) Order V Rule 16 directs that the Serving Officer shall get acknowledgment for service of the summons from the defendant or his agent or other person. The “other person” referred to herein can mean none other than the “adult member of defendant’s family” referred to in Rule15. Suppose the adult member of defendant’s family concedes to accept summons giving acknowledgment for it, can not the Serving Officer serve it on him? Or, should he submit a return to the court stating the above facts and wait for a specific order to serve it on an adult member which will be done by the court only at the next hearing date ?

ii) In Rule 17 we again find “such other person as aforesaid”. Who else can it be except the “adult family member”? It continues to say that the Serving Officer shall affix a copy of the summons on the outer door of the house etc. Again, should the Serving Officer go back and get an order from Court for affixture ? Order V Rule 19 says that the court may examine the Serving Officer on oath to ascertain the truthfulness of serving the Summons. What more is required ?

iii) Rule 18 calls upon the Serving Officer to submit a detailed report on serving the process under Rule 16 which should include the serving time manner, ID witness etc. C.R.P. Rule 77 to 80 also call upon the Serving Officer if he has affixed the summons on the outer door etc., to submit his report verified by affidavit giving details of serving summons. If summons could be served on an adult member only after the court gives a finding for it, why should the Serving Officer be called upon to submit such a report to the court ?

7. The process server is a responsible Officer deputed by the Court. He is not a peon nor a messenger. He is a Public Officer. See C.P.C., Section 2(17)(d). He is authorized by the court to execute judicial process. When he serves the summons on an adult member of defendant’s, family taking acknowledgement for it as prescribed in Order V Rule 16, he performs his duty. It has to be presumed that he has regularly performed it, vide Indian Evidence Act, S.114(e).

Is not the above analytical discussion decisive to conclude that no specific finding of the Court is required for the Serving Officer to serve the summons on an adult member of the family of the defendant, who is residing with him.

What Information of A Co-operative Society can be Accessed by A Public Authority under the Right to Information Act? The Guiding Principles

(By R. Muralidharan, Puducherry Civil Service Officer (Retd.), Director, Catalyst [The Training People])

The question whether co-operative societies answer the definition of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005 was engaging the attention of various State and Central Information Commissions and the High Courts for quite some time and divergent decisions were delivered by the Commissions and the High Courts.  Ultimately, the Supreme Court, from a Full Bench decision emanated from the Kerala High Court, settled the jurisdictional limit of the Right to Information Act vis-a-vis Co-operative Societies in Thalappalam Service Co-operative Bank Ltd., & Ors. v. State of Kerala & Ors.(2013 (4) KLT 232 (SC): 2013 (12) SCALE 527: 2013 (6) CTC 98: (2013) 7 MLJ 407: 2014-1-LW. 273 : RTIR IV (2013) 75 : (2013) 16 SCC 92 with the following propositions:

(i)  To answer the definition of ‘public authority’ under Section 2(h) of the R.T.I. Act it is to be established whether a co-operative society is a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate Government;

(ii)  A Co-operative Society is not a body owned by the appropriate Government;

(iii)  The expression ‘controlled’ must be a control of a substantial nature and not merely supervisory or regulatory.  Powers exercised by the Registrar and others under the Co-operative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled;  

(iv)   ‘Substantially financed’ indicate that the degree of financing must be actual, existing, positive and real, it should be shown that but for the funding the society would struggle to exist;

(v)   Providing subsidies, exemption, privileges etc., will not tantamount to substantial financing.  Similarly schemes meant for betterment of co-operatives also will not be construed as substantial financing;

(vi)  Only if the societies are substantially financed, it will fall within the sweep of ‘public authorities’ and answerable to the R.T.I. Act;

(vii)   A body (in this case a society) is free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government;

(viii)  If the information is not statutorily accessible by a public authority those information will not be under the ‘control of the public authority’;

(ix)  A citizen can have access to information of a co-operative society through the Registrar, who is a pubic authority;

(x)  The Registrar cannot access all the information from a co-operative society, but only those information which it is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law.

This article focuses on to what extent the applicant can have information from a co-operative society through a public authority who can access it under any other law as had been defined under Section 2 (f) of the Act.  The claim of the applicant seems that though the co-operative society is not a public authority under the Act, he can entrée such information he intends to have through the public authority, namely, the Registrar of Co-operative Societies, who is a public authority under Section 2 (h) of the Act.  Is there any limit for such access to information or sky is the limit?

Supreme Court sets the tone

The answer to the above question may be found from the judgment of the Apex Court in Thalappalam Service Co-operative Bank Ltd. (supra). The Court observed that the Registrar functioning under the Co-operative Societies Act is a public authority.  As a public authority the Registrar has been conferred with lot of statutory powers.  He is duty bound to comply with the obligations under the R.T.I. Act.  Information which he is expected to provide is the information enumerated in Section 2(f), subject to the limitations provided under Section 8.  The Registrar can also, to the extent law permits, gather information from a society, on which he has supervisory or administrative control.  He is not obliged to disclose those information if those information fall under Section 8.  Only those information which a Registrar can have access under the Co-operative Societies Act from a society could be said to be the information which is ‘held’ or ‘under the control of the public authority’. 

The Registrar is not bound to furnish the information to the applicant if the information sought for falls under the exempted category, even if the Registrar has got that information.  He is bound to provide the information only on his satisfaction that large public interest warrants such a disclosure that too for reasons to be recorded in writing.

In Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors. (2011 (3) KLT SN 117 (C.No.120): (2011 (2) ID 101: 2011-4-LW-289: 2011 (7) MLJ 1237: (2011) 8 SCC 497: RTIR III (2011) 242), the Supreme Court  clarified that if a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.  Of course, this decision is not based on interpretation of the Co-operative Societies Act.

Decisions of the High Courts

Echoing on the law enunciated by the Supreme Court, various High Courts have rendered the following decisions on this subject.

(i) The Division Bench of Delhi High Court in Eliamma Sebastian v. Ministry of Home Affairs & Ors. (2016 (4) KLT 2211 (Del.) = RTIR II (2016) 101) held that the information which is in the possession of the co-operative society is accessible to its members and those interested, in Section 139 of the Delhi Co-operative Societies Act. The absolute nature of this obligation to furnish information to those entitled to apply and receive is reinforced by the consequences which are spelt out in Section 139(2). However, information which the society may not possess, but pertaining to it, in the form of records with the Registrar of Co-operative Societies, have to be provided by the latter, under the R.T.I. Act, as there is no doubt that such official, who discharges statutory functions, is a public authority. However, the grounds of exemption spelt out under the R.T.I. Act too would be attracted, wherever applicable. The applications of the petitioner shall be considered by the Registrar, to the extent the information is available with his office. In regard to the information not available, the Registrar shall indicate clearly what material does not exist, in an order. It is then open to the petitioner to seek such information under Section 139 of the Delhi Co-operative Societies Act.

(ii) In case before Bombay High Court in Sainik Co-operative House Building Society Ltd. v. Bismark Facho & Ors.(AIR 2015 Bom.153), the information in the form of question Nos. 4 and 5 (minutes of the society) was not in possession of the Registrar of Co-operative Societies but he had called for the said information from the petitioner society and the petitioner society had refused to furnish the said information. There was no finding by any authority that the information sought for by the first respondent by way of question Nos. 4 and 5 could be accessed by the Registrar under the Maharashtra Co-operative Societies Act or any other law for the time being in force at the relevant time.

The impugned order to the effect that the petitioner society is a public authority and has to give the information requested by the citizens under the Act, unless it is exempted under any of the provisions of the same Act and therefore the second respondent shall give information withheld by the petitioner was quashed and set aside.

(iii) In Puthiyatheru Urban Co-operative Society Ltd., v. Joint Registrar of Co-operative Societies (General), (2017 (2) KLT 656 : AIR 2017 Ker 166 : RTIR III (2017) 167), the Kerala High Court observed that in the light of the decision of the Apex Court in Thalappalam Service Co-operative Bank Limited v. State of Kerala [cited above] there cannot be any doubt that the petitioner would not fall within the definition of ‘public authority’ under the RTI Act. Co-operative societies registered under the Societies Act are, therefore, only private bodies as far as the R.T.I. Act is concerned. But, the Joint Registrar and Assistant Registrar would certainly fall within the definition of ‘public authority’ under the R.T.I. Act and they are, therefore, obliged to furnish information under the R.T.I. Act. The information which the Joint Registrar and Assistant Registrar are obliged to furnish under the RTI Act are only information which would fall within the definition of ‘information’ as contained in Section 2(f) of the R.T.I. Act.

It can be inferred that the scheme of the R.T.I. Act is that whenever applications are preferred for information before the public authorities in relation to private bodies, it is obligatory for the public authorities concerned to consider whether the information sought are information which they are empowered to access under any law. If the information sought is not information which the public authorities are empowered to access under any law in respect of a private body, the public authorities have no obligation under the R.T.I. Act to furnish such information. In this context, it is to be clarified that if information sought from a public authority in relation to a private body are information which the public authority is empowered to access under any law, such information can certainly be gathered and furnished to the applicant, if the same is not available on the record of the public authority.

(iv) The question that calls for adjudication before the Kerala High Court in Thrissur District Co-operative Bank, Thrissur v. State Information Commission, Thiruvananthapuram & Anr. (2017 (1) KLT 2101 = AIR 2017 Ker.120) is do the co-operative societies fall within the jurisdictional limits of the Right to Information Act directly or indirectly, that is, at least, through the process of an official gathering information and then providing it to the applicants?

The Co-operative Societies, not supported by the Government, assert that they are not ‘public authorities’ and, so, they are beyond the jurisdictional limits of the Right to Information Act; certain third parties, unconnected to the societies, seek information insisting that the societies are bound by the Act; the Information Commission endorses the third-party view. The issue, broadly having been decided by the Supreme Court in Thalappalam, the question is whether the co-operative societies are liable to provide information under either the Right to Information Act or the Kerala Co-operative Societies Act.

The information he is expected to provide is the information enumerated in Section 2(f) of the R.T.I. Act; it is, however, subject to the limitations imposed by Section 8 of the Act. The Registrar can also, to the extent law permits, gather information from a society, on which he has supervisory or administrative control under the Co-operative Societies Act. Only the information a Registrar of Co-operative Societies can legitimately have access to from a society under the Co-operative Societies Act could be said to be the information ‘held’ by or is under the ‘control’ of public authorities. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a co-operative bank under law. In a given situation, the society will have to part with that information. But the demand should have statutory backing.

If there is no bona fide public interest in a person’s seeking information, disclosing that information will unwarrantedly invade the privacy of the person whose information is sought. In that eventuality, the public authority, here the Registrar, can refuse the person’s request, even withhold the information. Further, if the authority finds that information sought can be provided in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought also has a right to privacy guaranteed under Article 21 of the Constitution.

                                                                                 Note: Underlined to add emphasis

In fine

From an analysis of the aforesaid judgments and the principles evolved therein it is clear as crystal that Co-operative Societies, if not substantially financed, do not answer the definition of public authority under the R.T.I. Act.  When an applicant seeks information about such societies and makes an application to the public authority, the Registrar cannot access all the information from a co-operative society, but only those information which the society is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law. If information sought for is accessible under any law, such information can certainly be gathered and furnished to the applicant, if the same is not available on the record of the public authority. It is pertinent to note that if the society is substantially financed by the appropriate Government it is a public authority and is obliged to provide the information under the provisions of the Act.

A Look On The Ruling In 2017 (2) KLT 645

(By P. Devasahayam, Advocate, Vanchivoor, Thiruvananthapuram)

This decision (Abdul Kareem v. Muhammed Shafi) was rendered by Honourable Mr.Justice K.Harilal and Honourable Mr.Justice Raja Vijayaraghavan V. It is a case where the Landlord filed petition before the BRC Court for eviction of a tenant under S.11(2)(b) and 11(3) of the BRC Act 1965. Pending the matter Land lord filed two applications, one was for amendment of the petition under Order 6 Rule 17 C.P.C. along with S.23(1)(j) of the BRC Act seeking for incorporating S.11(4)(iii) of the Act with the allegation that the tenant had acquired possession of another building. The other application was for appointment of a commissioner. The Rent Control Court dismissed these applications. In an O.P.(RC) No.3669 of 2013 filed by the Landlord their Lordships concurred with the decision of the Rent Control Court regarding application for amendment and allowed the other application for appointment of commissioner.

I wish to discuss the decision on amendment. It was held by the court that in view of the rigour under S.23(1)(j) of the Act, Order VI Rule 17 C.P.C. cannot be allowed. It was also held that S.23(1)(j) of the Act is confined to the amendment to cure “defect or error” in the Rent Control Petition only and the cause of action for eviction on the new ground arose pending the matter petitioner was disentitled for amendment.

It was so discussed in para.12 of the decision that S.23(1)(j) is confined to cure “defect or error” in the Rent Control Petition only. According to me the literal and purposive interpretation of the Section is not only the application but the entire proceedings including application. It is the principle of law that subsequent event can be considered by the court to shorten litigation and cause of action is applicable only to suits and not application like applications before BRC Court. As per the opinion of his Lordship Justice Mr.V.R.Krishna Iyer the number of acceptance of subsequent event is legion.

Let us consider the earlier decisions on this matter in Abraham v. Associated Engineering Corporation (1984 KLT 985). It was held that Rent Control Court has power for amendment under S.23(1)(j) or inherent power or residuary powers of the Rent Controller as a Court. In Seshambal v. Chelur Corporation (2010 (1) KLT 834) it was so held by the Supreme Court at page 839 and 840, subsequent event can be considered by amendment if there is hearing upon the impact of the rights of the parties. In Mohan v. Jayaprakash (2013 (2) KLT 260) it was a case for amendment by adding a additional party to the proceedings pending the matter. After analyzing the case law it was held that S.22 or 23 of the Act does not mean that the Rent Control Court does not lacks inherent power to do substantial justice in adding parties and amending applications. In Krishna Iyer v. Abdul Rasheed (2015 (1) KLT 511) it was held that S.23 of the Act does not bar the Rent Control Court to exercise any other power which the Civil Court exercises under C.P.C. provided it does not offend the Act and Rules.

It can be seen that S.23(1)(j) of the BRC Act has been interpreted in a hyper technical way in the present case. The basic principles of judicial system under jurisprudence is for rendering substantial justice. This subsequential justice can be done through the channels of truth. There are series of procedures adopted in an enactment to find out truth. The procedures are interrogatories, production of documents, examination of parties etc. The Authority on this matter is cited in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (2012 (2) KLT SN 46 (C.No.47) SC = AIR 2012 SC 1727). Truth must be the foundation of Justice. Judges should not sit as mere umpire during trial, but play active role to find out, truth. This value of truth for administration of justice has been discussed at paras 31 to 49 of this judgment. This matter has been re­iterated in another judgment in Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (AIR 2012 SC 2010). The journey of a Judge is to discover the truth. Every trial is a voyage of discovery in which truth is the quest. Paras 24 to 29 deal with truth including English, American and Israel decisions.

S.23 of the Act deals with procedure including amendment of defect or error in orders or proceedings. In this case the tenant was alleged to have obtained possession of another building entiling the landlord for eviction of the tenanted building. The word proceedings mentioned in this section has not been defined.  Applying the principle in Hydon’s case remedy is to be advanced to find out the truth for the administration of justice. As per the ruling in 1988 KLJ 55 interpretation is possible one that is reasonable on common sense.

We Lawyers are arguing our cases with the support of authorities. I have got a doubt as to the interpretation of S.23(1)(j) of the Act in view of this Ruling of their Lordships as to whether it is a pragmatic approach or pedantic approach with the goal to find out the truth for the ends of justice.