As per the case facts, several writ petitions were filed by various banks challenging directions issued by the Reserve Bank of India (RBI) to disclose certain information. The banks contended ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/ APPELLATE JURISDICTION
I.A. No.68597 of 2021 AND I.A. No. 51632 of 2022
IN &
WRIT PETITION (CIVIL) NO.1159 OF 2019
HDFC BANK LTD. & ORS. ...PETITIONER (S)
VERSUS
UNION OF INDIA & ORS. ...RESPONDENT (S)
WITH
I.A. No.54521 of 2022
IN &
WRIT PETITION (CIVIL) NO.683 OF 2021
WRIT PETITION (CIVIL) NO. 1469 OF 2019
WRIT PETITION (CIVIL) NO.690 OF 2021
WRIT PETITION (CIVIL) NO.709 OF 2021
WRIT PETITION (CIVIL) NO.768 OF 2021
WRIT PETITION (CIVIL) NO.765 OF 2021
SPECIAL LEAVE PETITION (CIVIL) NO.14343 OF 2022
O R D E R
1
B.R. GAVAI, J.
1.For the reasons stated in I.A. No.68597 of 2021 in Writ
Petition (Civil) No.1159 of 2019 for Impleadment, the same is
allowed.
2.This batch of writ petitions has been filed by various
Banks including private banks, inter alia, challenging the
action of the respondentReserve Bank of India (hereinafter
referred to as “RBI”) in directing disclosure of confidential and
sensitive information pertaining to their affairs, their employees
and their customers under the Right to Information Act, 2005
(hereinafter referred to as “the RTI Act”), which, in their
submission, is otherwise exempt under Section 8 thereof.
3.We are treating Writ Petition (Civil) No. 1159 of 2019 as
the lead matter.
4.Interlocutory Applications being I.A. No. 51632 of 2022 in
Writ Petition (Civil) No.1159 of 2019 and I.A. No.54521 of 2022
in Writ Petition (Civil) No.683 of 2021 have been filed by the
2
applicantGirish Mittal, thereby seeking dismissal of the
present writ petitions.
5.It is the contention of the applicant that the present writ
petitions, in effect, are challenging the final judgment and order
dated 16
th
December 2015, passed by this Court in the case of
Reserve Bank of India vs. Jayantilal N. Mistry
1
and hence
the same is not maintainable and is liable to be dismissed.
6.We have heard Mr. Prashant Bhushan, learned counsel
appearing on behalf of the applicantGirish Mittal and Mr.
Rakesh Dwivedi, Mr. Mukul Rohatgi, Mr. Dushyant Dave, Mr.
Jaideep Gupta, and Mr. K.V. Viswanathan, learned Senior
Counsels and Mr. Divyanshu Sahay, learned counsel appearing
on behalf of the writ petitioners/Banks.
7.Mr. Prashant Bhushan, learned counsel, submitted that
the issue which is sought to be raised in the present writ
petitions has already been put to rest by a judgment of this
court in the case of Jayantilal N. Mistry (supra). It is further
1 (2016) 3 SCC 525
3
submitted that this Court, in the case of Girish Mittal vs.
Parvati V. Sundaram and another
2
, while holding that the
RBI has committed contempt of this Court by exempting
disclosure of material that was directed to be given by this
Court, has also held that the RBI was duty bound to furnish all
information relating to inspection reports and other materials.
8.Mr. Prashant Bhushan relies on the judgment of a Nine
Judge Bench of this Court in the case of Naresh Shridhar
Mirajkar and others vs. State of Maharashtra and Anr.
3
in
support of his proposition that a judicial decision cannot be
corrected by this Court in exercise of its jurisdiction under
Article 32 of the Constitution of India. He also relied on the
judgment of a SevenJudge Bench of this Court in the case of
A.R. Antulay vs. R.S. Nayak and another
4
to contend that
the judicial proceedings in this Court are not subject to the writ
jurisdiction thereof.
2 (2019) 20 SCC 747 = Contempt Petition (C) No. 928 of 2016 in Transfer Case (C) No.
95 of 2015, decided on 26
th
April 2019
3 (1966) 3 SCR 744
4 (1988) 2 SCC 602
4
9.Mr. Prashant Bhushan further submitted that this Court
in the case of Anil Kumar Barat vs. Secretary, Indian Tea
Association and others
5
has also held that the validity of an
order passed by this Court itself cannot be subject to writ
jurisdiction of this Court.
10.Mr. Bhushan also relied on the judgments of a Three
Judge Bench of this Court in the cases of Khoday Distilleries
Ltd. and another vs. Registrar General, Supreme Court of
India
6
, Mohd. Aslam vs. Union of India and others
7
and
Union of India and others vs. Major S.P. Sharma and
others
8
and the judgment of a FiveJudge Bench of this Court
in the case of Rupa Ashok Hurra vs. Ashok Hurra and
another
9
to buttress his submissions.
11.Mr. Bhushan further submitted that in the case of
Jayantilal N. Mistry (supra), several Miscellaneous
5 (2001) 5 SCC 42
6 (1996) 3 SCC 114
7 (1996) 2 SCC 749
8 (2014) 6 SCC 351
9 (2002) 4 SCC 388
5
Applications were filed on behalf of the Banks for impleadment.
As such, the judgment delivered in the case of Jayantilal N.
Mistry (supra) is after consideration of rival submissions,
which now cannot be reopened. He further submitted that this
Court by order dated 28
th
April 2021, passed in M.A. No.2342 of
2019 in Transferred Case (Civil) No.91 of 2015 and other
connected matters has specifically rejected the prayer filed by
the Banks (writ petitioners herein) for recall of the judgment
dated 16
th
December 2015 passed by this Court in the case of
Jayantilal N. Mistry (supra), and as such, the present writ
petitions are liable to be dismissed.
12.Per contra, the learned Senior Counsels appearing on
behalf of the writ petitioners/Banks submit that though M.A.
No.2342 of 2019 in Transferred Case (Civil) No.91 of 2015 and
other connected matters were rejected by this Court by order
dated 28
th
April 2021, this Court clarified that the dismissal of
those applications shall not prevent the applicantBanks
therein to pursue other remedies available to them in law. It is
6
thus submitted that the said order would not come in the way
of the present petitioners in filing the present petitions.
13.It is submitted that Section 11 of the RTI Act provides that
when any information relating to third party has been sought, a
written notice is required to be given to such third party of the
request, by the Central Public Information Officer or State
Public Information Officer, as the case may be, and the
submissions by such third party are required to be taken into
consideration while taking a decision about the disclosure of
the information. Reliance in this respect has been placed on the
judgment of this Court in the case of Chief Information
Commissioner vs. High Court of Gujarat and another
10
. It
is submitted that this Court in the case of Jayantilal N.
Mistry (supra) has not taken into consideration this aspect of
the matter.
14.It is further submitted on behalf of the writ
petitioners/Banks that the right to privacy has been said to be
10 (2020) 4 SCC 702
7
as implicit fundamental right by a FiveJudge Constitution
Bench of this Court in the case of Supreme Court Advocates
onRecord Association and another vs. Union of India
11
. It
is submitted that the said view is also reiterated by a Nine
Judge Constitution Bench of this Court in the case of K.S.
Puttaswamy and another vs Union of India and others
12
,
which has explicitly and categorically recognised the right to
privacy as a fundamental right.
15.Mr. Rakesh Dwivedi, learned Senior Counsel, relied on the
judgment of this Court in the case of A.R. Antulay (supra) in
support of the proposition that no man should suffer because
of the mistake of the Court. He submits that the rules of
procedure are the handmaidens of justice and not the mistress
of justice. He relies on the maxim “ex debito justitiae”. He
further relies on the judgment of this Court in the case of
Sanjay Singh and another vs. U.P. Public Service
11 (2016) 5 SCC 1
12 (2017) 10 SCC 1
8
Commission, Allahabad and another
13
in support of the
submission that the petition would be tenable.
16.Mr. Mukul Rohatgi, learned Senior Counsel, submitted
that the petitioners herein are private banks and not a public
authority as defined under the RTI Act. He relies on the
judgment of this Court in the case of Thalappalam Service
Cooperative Bank Limited and others vs. State of Kerala
and others
14
in that regard. He submitted that RBI’s
Inspection Reports in respect of the inspection carried out
under Section 35 of the Banking Regulation Act, 1949 are so
confidential that they cannot even be provided to the Directors
individually. He relies on the communication issued by the RBI
to all the Banks dated 14
th
March 1998 in this regard.
17.Mr. Rohatgi further submitted that an earlier policy as
notified by the RBI on 30
th
June 1992 was in tune with the
provisions of Section 8 of the RTI Act, the provisions of the
Reserve Bank of India Act, 1934 (hereinafter referred to as “the
13 (2007) 3 SCC 720
14 (2013) 16 SCC 82
9
RBI Act”) and the Banking Regulation Act, 1949. However, in
view of the judgment of this Court in the case of Girish Mittal
(supra), the RBI has modified the policy into a oneline policy,
providing therein that the disclosure of information was to be in
accordance with the judgment and order of this Court in
Girish Mittal (supra). Mr. Rohatgi, learned Senior Counsel
relied on the judgment of this Court in the case of Bihar
Public Service Commission vs. Saiyed Hussain Abbas Rizwi
and another
15
in support of his submission that the Court will
have to strike a balance between public interest and private
interest. He also relies on the judgment of this Court in the
case of Girish Ramchandra Deshpande vs. Central
Information Commissioner and others
16
to contend that
personal information cannot be directed to be disclosed unless
outweighing public interest demands it to be done.
18.Mr. K.V. Viswanathan, learned Senior Counsel submits
that HDFC Bank, Kotak Bank and Bandhan Bank were not
15 (2012) 13 SCC 61
16 (2013) 1 SCC 212
10
parties in the case of Jayantilal N. Mistry (supra). He
submits that subSection (5) of Section 35 of the Banking
Regulation Act, 1949 provides a specific procedure as to in
what manner the inspection report would be published. He
submits that when a special Act provides a particular manner
for disclosure of an information, it will have an overriding effect
over the RTI Act. The learned Senior Counsel submits that the
said provisions were not noticed in the case of Jayantilal N.
Mistry (supra).
19.Mr. Jaideep Gupta, learned Senior Counsel submitted that
this Court in the case of Jayantilal N. Mistry (supra) has not
taken into consideration the provisions of the Credit
Information Companies (Regulation) Act, 2005.
20.Mr. Dushyant Dave, learned Senior Counsel, submitted
that Section 45NB of the RBI Act emphasizes on the
confidentiality of certain information with regard to non
banking companies. He submits that subsection (4) of Section
45NB of the RBI Act, which is a nonobstante clause, provides
11
that, notwithstanding anything contained in any law for the
time being in force, no court or tribunal or other authority shall
compel the Bank to produce or to give inspection of any
statement or other material obtained by the Bank under any
provisions of this Chapter. He submits that this provision has
not been noticed in the case of Jayantilal N. Mistry (supra).
21.It is submitted on behalf of all the writ petitioners/Banks
that what is under challenge is the action of the RBI compelling
the petitioners to disclose certain information which itself is
exempted under the provisions of the RBI Act. It is submitted
that various other special enactments specifically prohibit such
information to be disclosed. It is submitted that since the RBI’s
directions are issued in pursuance to the judgments of this
Court in the cases of Jayantilal N. Mistry (supra) and Girish
Mittal (supra), the petitioners cannot approach the High Court
and the only remedy that is available to the petitioners is by
way of the present writ petitions. It is submitted by learned
Senior Counsels appearing on behalf of the writ
12
petitioners/Banks that this Court in Jayantilal N. Mistry
(supra) does not notice the judgment of this Court in the case
of Supreme Court AdvocatesonRecord Association and
another (supra). The judgment of this Court in the case of
Supreme Court AdvocatesonRecord Association and
another (supra) was rendered on 16
th
October 2015, whereas
the judgment of this Court in the case of Jayantilal N. Mistry
(supra) was rendered on 16
th
December 2015. It is further
submitted that, in view of the judgment of the Constitution
Bench consisting of Nine Hon’ble Judges in the case of K.S.
Puttaswamy and another (supra) clearly recognizing the right
to privacy as a fundamental right, the law laid down by this
Court in the case of Jayantilal N. Mistry (supra) to the
contrary is no more a good law and, therefore, requires
reconsideration by a larger Bench.
22.In the case of Naresh Shridhar Mirajkar and others
(supra), a NineJudge Constitution Bench of this Court was
considering as to whether an order passed by the High Court
13
on original side in the proceedings before it could be challenged
under Article 32 of the Constitution for enforcement of
fundamental rights guaranteed under Article 19(1)(a), (d) and
(g) of the Constitution of India. It will be relevant to refer to the
following observations of this Court in the said case:
“The basis of Mr Setalvad's argument is that
the impugned order is not an order inter
partes, as it affects the fundamental rights of
the strangers to the litigation, and that the
said order is without jurisdiction. We have
already held that the impugned order
cannot be said to affect the fundamental
rights of the petitioners and that though
it is not interpartes in the sense that it
affects strangers to the proceedings, it
has been passed by the High Court in
relation to a matter pending before it for
its adjudication and as such, like other
judicial orders passed by the High Court
in proceedings pending before it, the
correctness of the impugned order can be
challenged only by appeal and not by
writ proceedings. We have also held that
the High Court has inherent jurisdiction to
pass such an order.
But apart from this aspect of the matter,
we think it would be inappropriate to allow
the petitioners to raise the question about
the jurisdiction of the High Court to pass the
impugned order in proceedings under Article
14
32 which seek for the issue of a writ of
certiorari to correct the said order. If
questions about the jurisdiction of superior
courts of plenary jurisdiction to pass orders
like the impugned order are allowed to be
canvassed in writ proceedings under Article
32, logically, it would be difficult to make a
valid distinction between the orders passed
by the High Courts interpartes, and those
which are not interpartes in the sense that
they bind strangers to the proceedings.
Therefore, in our opinion, having regard to
the fact that the impugned order has been
passed by a superior court of record in the
exercise of its inherent powers, the question
about the existence of the said jurisdiction as
well as the validity or propriety of the order
cannot be raised in writ proceedings taken
out by the petitioners for the issue of a writ
of certiorari under Article 32.”
[emphasis supplied]
23.It could thus be seen that the NineJudge Bench of this
Court, speaking through P.B. Gajendragadkar, CJ.,
categorically held that the impugned orders could not affect the
fundamental rights of the petitioners. It has further been held
that since the order was passed in the proceedings pending
before the High Court, the correctness of the impugned order
could be challenged only by appeal and not by writ
proceedings. It has been further held that, having regard to the
15
fact that the order had been passed by a superior court of
record in the exercise of its inherent powers, the question about
the existence of the said jurisdiction as well as the validity or
propriety of the order could not be raised in writ proceedings
taken out by the petitioners for the issue of a writ of certiorari
under Article 32. This Court further observed thus:
“We are, therefore, satisfied that so far as
the jurisdiction of this Court to issue writs
of certiorari is concerned, it is impossible to
accept the argument of the petitioners that
judicial orders passed by High Courts in or
in relation to proceedings pending before
them, are amenable to be corrected by
exercise of the said jurisdiction. We have
no doubt that it would be unreasonable
to attempt to rationalise the assumption
of jurisdiction by this Court under
Article 32 to correct such judicial orders
on the fanciful hypothesis that High
Courts may pass extravagant orders in
or in relation to matters pending before
them and that a remedy by way of a
writ of certiorari should, therefore, be
sought for and be deemed to be included
within the scope of Article 32. The words
used in Article 32 are no doubt wide; but
having regard to the considerations which
we have set out in the course of this
judgment, we are satisfied that the
impugned order cannot be brought within
16
the scope of this Court's jurisdiction to
issue a writ of certiorari under Article 32; to
hold otherwise would be repugnant to the
wellrecognised limitations within which the
jurisdiction to issue writs of certiorari can
be exercised and inconsistent with the
uniform trend of this Court's decisions in
relation to the said point.”
[emphasis supplied]
24.It could thus be seen that this Court held that it would be
unreasonable to hold that this Court, under Article 32, could
correct the judicial orders on the fanciful hypothesis that High
Courts may pass extravagant orders in or in relation to matters
pending before them and therefore this Court can correct the
same by issuance of a writ of certiorari under Article 32. This
Court held that though the words used in Article 32 are wide,
the order impugned before it could not be brought within the
scope of this Court’s jurisdiction to issue a writ of certiorari
under Article 32.
25. Insofar as the judgment of this Court in the case of
Khoday Distilleries Ltd. and another (supra), on which Mr.
Prashant Bhushan placed reliance, is concerned, this Court in
17
the said case was considering therein a challenge to the
correctness of the decision on merits after the appeal as well as
review petition were dismissed.
26.In the case of Mohd. Aslam (supra), this Court held that
Article 32 of the Constitution was not available to assail the
correctness of a decision on merits or to claim reconsideration.
It, however, considered the contention raised on behalf of the
petitioners that the judgment in the case of Manohar Joshi vs.
Nitin Bhaurao Patil and another
17
was in conflict with the
Constitution Bench judgement of this Court in the case of S.R.
Bommai and others vs. Union of India and others
18
. This
Court after considering the submissions found that the opinion
so expressed was misplaced.
27.Insofar as the judgment of this Court in the case of Major
S.P. Sharma and others (supra) is concerned, in the said
case, the first round of litigation arising out of termination of
respondentemployee had reached finality upto this Court.
17 (1996) 1 SCC 169
18 (1994) 3 SCC 1
18
However, the same was sought to be reopened by filing another
writ petition before the High Court. In this background, this
Court observed thus:
“90. Violation of fundamental rights
guaranteed under the Constitution have to be
protected, but at the same time, it is the duty
of the court to ensure that the decisions
rendered by the court are not overturned
frequently, that too, when challenged
collaterally as that was directly affecting the
basic structure of the Constitution
incorporating the power of judicial review of
this Court. There is no doubt that this Court
has an extensive power to correct an error or
to review its decision but that cannot be done
at the cost of doctrine of finality. An issue of
law can be overruled later on, but a question
of fact or, as in the present case, the dispute
with regard to the termination of services
cannot be reopened once it has been finally
sealed in proceedings inter se between the
parties up to this Court way back in 1980.”
28.It could thus be seen that this court has held that when a
question of fact has reached finality inter se between the
parties, it cannot be reopened in a collateral proceeding.
However, it has been observed that an issue of law can be
overruled later on.
19
29.Mr. Prashant Bhushan strongly relied on the judgment of
this Court in the case of Rupa Ashok Hurra (supra). It will be
relevant to refer to the following observations of this Court in
the judgment of Quadri, J.
“41.At one time adherence to the principle
of stare decisis was so rigidly followed in the
courts governed by the English
jurisprudence that departing from an earlier
precedent was considered heresy. With the
declaration of the practice statement by the
House of Lords, the highest court in England
was enabled to depart from a previous
decision when it appeared right to do so.
The next step forward by the highest
court to do justice was to review its
judgment inter partes to correct
injustice. So far as this Court is
concerned, we have already pointed out
above that it has been conferred the
power to review its own judgments under
Article 137 of the Constitution. The role
of the judiciary to merely interpret and
declare the law was the concept of a
bygone age. It is no more open to debate
as it is fairly settled that the courts can
so mould and lay down the law
formulating principles and guidelines as
to adapt and adjust to the changing
conditions of the society, the ultimate
objective being to dispense justice. In the
recent years there is a discernible shift
20
in the approach of the final courts in
favour of rendering justice on the facts
presented before them, without
abrogating but bypassing the principle of
finality of the judgment. In Union of
India v. Raghubir Singh [(1989) 2 SCC 754]
Pathak, C.J. speaking for the Constitution
Bench aptly observed: (SCC pp. 76667, para
10)
“10. But like all principles evolved by
man for the regulation of the social
order, the doctrine of binding
precedent is circumscribed in its
governance by perceptible limitations,
limitations arising by reference to the
need for readjustment in a changing
society, a readjustment of legal
norms demanded by a changed social
context. This need for adapting the
law to new urges in society brings
home the truth of the Holmesian
aphorism that ‘the life of the law has
not been logic it has been experience’
(Oliver Wendell Holmes : The
Common Law, p. 5), and again when
he declared in another study (Oliver
Wendell Holmes : Common Carriers
and the Common Law, (1943) 9 Curr
LT 387, 388) that ‘the law is forever
adopting new principles from life at
one end’, and ‘sloughing off’ old ones
at the other. Explaining the
conceptual import of what Holmes
had said, Julius Stone elaborated
that it is by the introduction of new
extralegal propositions emerging
21
from experience to serve as premises,
or by experienceguided choice
between competing legal propositions,
rather than by the operation of logic
upon existing legal propositions, that
the growth of law tends to be
determined (Julius Stone : Legal
Systems & Lawyers Reasoning, pp.
5859).”
42. The concern of this Court for
rendering justice in a cause is not less
important than the principle of finality
of its judgment. We are faced with
competing principles — ensuring
certainty and finality of a judgment of
the Court of last resort and dispensing
justice on reconsideration of a
judgment on the ground that it is
vitiated being in violation of the
principles of natural justice or giving
scope for apprehension of bias due to a
Judge who participated in the decision
making process not disclosing his links
with a party to the case, or on account
of abuse of the process of the court .
Such a judgment, far from ensuring
finality, will always remain under the
cloud of uncertainty. Almighty alone is the
dispenser of absolute justice — a concept
which is not disputed but by a few. We
are of the view that though Judges of
the highest court do their best, subject
of course to the limitation of human
fallibility, yet situations may arise, in
the rarest of the rare cases, which
22
would require reconsideration of a
final judgment to set right miscarriage
of justice complained of. In such case
it would not only be proper but also
obligatory both legally and morally to
rectify the error. After giving our anxious
consideration to the question, we are
persuaded to hold that the duty to do
justice in these rarest of rare cases shall
have to prevail over the policy of certainty
of judgment as though it is essentially in
the public interest that a final judgment of
the final court in the country should not
be open to challenge, yet there may be
circumstances, as mentioned above,
wherein declining to reconsider the
judgment would be oppressive to judicial
conscience and would cause perpetuation
of irremediable injustice.
xxx xxx xxx
49. The upshot of the discussion in our
view is that this Court, to prevent abuse of
its process and to cure a gross miscarriage
of justice, may reconsider its judgments in
exercise of its inherent power.”
[emphasis supplied]
30.This Court in the aforesaid case held that the concern of
this Court for rendering justice in a cause is not less important
than the principle of finality of its judgment. The Court has to
balance ensuring certainty and finality of a judgment of the
23
Court of last resort on one hand and dispensing justice on
reconsideration of a judgment on the valid grounds on the
other hand. This Court has observed that though Judges of
the highest court do their best, yet situations may arise, in the
rarest of the rare cases, which would require reconsideration of
a final judgment to set right miscarriage of justice complained
of. It has been held that in such a case it would not only be
proper but also obligatory both legally and morally to rectify the
error. This Court further held that to prevent abuse of its
process and to cure a gross miscarriage of justice, the Court
may reconsider its judgments in exercise of its inherent power.
31.This Court in the case of A.R. Antulay (supra), speaking
through Sabyasachi Mukharji, J. observed thus:
“82.Lord Cairns in Rodger v. Comptoir
D'escompte De Paris [(186971) LR 3 PC 465,
475 : 17 ER 120] observed thus:
“Now, Their Lordships are of
opinion, that one of the first and
highest duties of all courts is to
take care that the act of the court
does no injury to any of the suitors,
and when the expression ‘the act of
24
the court’ is used, it does not mean
merely the act of the primary court,
or of any intermediate court of
appeal, but the act of the court as a
whole, from the lowest court which
entertains jurisdiction over the
matter up to the highest court
which finally disposes of the case.
It is the duty of the aggregate of
those Tribunals, if I may use the
expression, to take care that no act
of the court in the course of the
whole of the proceedings does an
injury to the suitors in the court.
83.This passage was quoted in the Gujarat
High Court by D.A. Desai, J., speaking for
the Gujarat High Court in Soni Vrajlal v. Soni
Jadavji [AIR 1972 Guj 148 : (1972) 13 Guj
LR 555] as mentioned before. It appears that
in giving directions on 1621984, this Court
acted per incuriam inasmuch it did not bear
in mind consciously the consequences and
the provisions of Sections 6 and 7 of the
1952 Act and the binding nature of the
larger Bench decision in Anwar Ali Sarkar
case [AIR 1952 SC 75 : 1952 SCR 284 : 1952
Cri LJ 510] which was not adverted to by
this Court. The basic fundamentals of the
administration of justice are simple. No man
should suffer because of the mistake of the
court. No man should suffer a wrong by
technical procedure of irregularities. Rules or
procedures are the handmaids of justice and
not the mistress of the justice. Ex debito
justitiae, we must do justice to him. If a man
has been wronged so long as it lies within
the human machinery of administration of
25
justice that wrong must be remedied. This is
a peculiar fact of this case which requires
emphasis.”
32.It could thus be seen that the principle of ex debito
justitiae has been emphasized. This Court held that no man
should suffer because of the mistake of the court. No man
should suffer a wrong by technical procedure of irregularities. It
has been held that the rules of procedure are the handmaidens
of justice and not the mistress of justice. It has further been
held that if a man has been wronged, so long as the wrong lies
within the human machinery of administration of justice, that
wrong must be remedied.
33.Ranganath Misra, J., in his concurrent opinion, observed
thus:
“102. This being the apex court, no
litigant has any opportunity of approaching
any higher forum to question its decisions.
Lord Buckmaster in Montreal Street Railway
Co. v. Normadin [1917 AC 170] (sic) stated:
All rules of court are nothing but
provisions intended to secure proper
administration of justice. It is,
26
therefore, essential that they should be
made to serve and be subordinate to
that purpose.
This Court in State of
Gujarat v. Ramprakash P. Puri [(1969) 3 SCC
156 : 1970 SCC (Cri) 29 : (1970) 2 SCR 875]
reiterated the position by saying [SCC p. 159
: SCC (Cri) p. 31, para 8]
Procedure has been described to be a
handmaid and not a mistress of law,
intended to subserve and facilitate the
cause of justice and not to govern or
obstruct it. Like all rules of procedure,
this rule demands a construction which
would promote this cause
Once judicial satisfaction is reached that the
direction was not open to be made and it is
accepted as a mistake of the court, it is not
only appropriate but also the duty of the
court to rectify the mistake by exercising
inherent powers. Judicial opinion heavily
leans in favour of this view that a mistake of
the court can be corrected by the court itself
without any fetters. This is on the principle
as indicated in (Alexander) Rodger
case [(196971) LR 3 PC 465 : 17 ER 120] . I
am of the view that in the present situation,
the court's inherent powers can be exercised
to remedy the mistake. Mahajan., J.
speaking for a Four Judge Bench
27
in Keshardeo Chamria v. Radha Kissen
Chamria [1953 SCR 136 : AIR 1953 SC 23]
at Page 153 stated:
The judge had jurisdiction to correct his
own error without entering into a
discussion of the grounds taken by the
decreeholder or the objections raised
by the judgmentdebtors.
103.The Privy Council in Debi Bakhsh
Singh v. Habib Shah [ILR (1913) 35 All 331]
pointed out that an abuse of the process of
the court may be committed by the court or
by a party. Where a court employed a
procedure in doing something which it never
intended to do and there is an abuse of the
process of the court it can be corrected. Lord
Shaw spoke for the Law Lords thus:
Quite apart from Section 151, any court
might have rightly considered itself to
possess an inherent power to rectify the
mistake which had been inadvertently
made.
It was pointed out by the Privy Council
in The Bolivar [AIR 1916 PC 85] that:
Where substantial injustice would
otherwise result, the Court has, in
Their Lordships' opinion, an inherent
power to set aside its own judgments of
condemnation so as to let in bona fide
claims by parties...
Indian authorities are in abundance to
support the view that injustice done should
be corrected by applying the principle actus
28
curia neminem gravabit — an act of the court
should prejudice no one.
104.To err is human, is the oftquoted
saying. Courts including the apex one are no
exception. To own up the mistake when
judicial satisfaction is reached does not
militatte against its status or authority.
Perhaps it would enhance both.”
34.It has been held that this being the apex court, no litigant
has any opportunity of approaching any higher forum to
question its decisions. It has further been held that once a
judicial satisfaction is reached that the direction was not open
to be made and it is accepted as a mistake of the court, it is not
only appropriate but also the duty of the court to rectify the
mistake by exercising its inherent powers. It has been held
that, to err is human, and the Courts including the Apex Court
are no exception.
35.This Court in the case of Sanjay Singh and another
(supra) has observed thus:
“10. The contention of the Commission also
overlooks the fundamental difference between
challenge to the final order forming part of the
judgment and challenge to the ratio decidendi
of the judgment. Broadly speaking, every
29
judgment of superior courts has three
segments, namely, (i) the facts and the point at
issue; (ii) the reasons for the decision; and (iii)
the final order containing the decision. The
reasons for the decision or the ratio decidendi
is not the final order containing the decision.
In fact, in a judgment of this Court, though the
ratio decidendi may point to a particular result,
the decision (final order relating to relief) may
be different and not a natural consequence of
the ratio decidendi of the judgment. This may
happen either on account of any subsequent
event or the need to mould the relief to do
complete justice in the matter. It is the ratio
decidendi of a judgment and not the final order
in the judgment, which forms a precedent. The
term “judgment” and “decision” are used,
rather loosely, to refer to the entire judgment
or the final order or the ratio decidendi of a
judgment. Rupa Ashok Hurra [(2002) 4 SCC
388] is of course, an authority for the
proposition that a petition under Article 32
would not be maintainable to challenge or set
aside or quash the final order contained in a
judgment of this Court. It does not lay down
a proposition that the ratio decidendi of
any earlier decision cannot be examined or
differed in another case. Where violation of
a fundamental right of a citizen is alleged
in a petition under Article 32, it cannot be
dismissed, as not maintainable, merely
because it seeks to distinguish or
challenge the ratio decidendi of an earlier
judgment, except where it is between the
same parties and in respect of the same
cause of action. Where a legal issue raised in
a petition under Article 32 is covered by a
30
decision of this Court, the Court may dismiss
the petition following the ratio decidendi of the
earlier decision. Such dismissal is not on the
ground of “maintainability” but on the ground
that the issue raised is not tenable, in view of
the law laid down in the earlier decision. But if
the Court is satisfied that the issue raised
in the later petition requires consideration
and in that context the earlier decision
requires reexamination, the Court can
certainly proceed to examine the matter (or
refer the matter to a larger Bench, if the
earlier decision is not of a smaller Bench).
When the issue is reexamined and a view is
taken different from the one taken earlier, a
new ratio is laid down. When the ratio
decidendi of the earlier decision undergoes
such change, the final order of the earlier
decision as applicable to the parties to the
earlier decision, is in no way altered or
disturbed. Therefore, the contention that a writ
petition under Article 32 is barred or not
maintainable with reference to an issue which
is the subjectmatter of an earlier decision, is
rejected.”
[emphasis supplied]
36.After referring to the judgment of this Court in the case of
Rupa Ashok Hurra (supra) , this Court has held that it does
not lay down a proposition that the ratio decidendi of an earlier
decision cannot be examined or differed with in another case.
31
It has been held that if the Court is satisfied that the issue
raised in the later petition requires consideration and in that
context, the earlier decision requires reexamination, the Court
can certainly proceed to examine the matter or refer the matter
to a larger Bench, if the earlier decision is not of a smaller
Bench. This Court, therefore, specifically rejected the
contention that a writ petition under Article 32 of the
Constitution was barred or not maintainable with reference to
an issue which was the subject matter of an earlier decision.
37.In the present case, admittedly, the writ
petitioners/Banks were not parties in the case of Jayantilal N.
Mistry (supra). Though the Miscellaneous Applications filed by
HDFC Bank and others for recall of the judgment and order in
the case of Jayantilal N. Mistry (supra) were rejected by this
Court vide order dated 28
th
April 2021, this Court in the said
order specifically observed thus:
“The dismissal of these applications shall not
prevent the applicants to pursue other
remedies available to them in law.”
32
38.It is thus clear that this Court did not foreclose the right
of the petitioners/Banks to pursue other remedies available to
them in law.
39.In view of the judgment of this Court in the case of
Jayantilal N. Mistry (supra), the RBI is entitled to issue
directions to the petitioners/Banks to disclose information even
with regard to the individual customers of the Bank. In effect,
it may adversely affect the individuals’ fundamental right to
privacy.
40.A NineJudge Constitution Bench of this Court in the case
of K.S. Puttaswamy and another (supra) has held that the
right to privacy is a fundamental right. No doubt that the right
to information is also a fundamental right. In case of such a
conflict, the Court is required to achieve a sense of balance.
41.A perusal of the judgments of this Court cited supra
would reveal that it has been held that though the concept of
finality of judgment has to be preserved, at the same time, the
33
principle of ex debito justitiae cannot be given a gobye. If the
Court finds that the earlier judgment does not lay down a
correct position of law, it is always permissible for this Court to
reconsider the same and if necessary, to refer it to a larger
Bench.
42.Without expressing any final opinion, prima facie, we find
that the judgment of this Court in the case of Jayantilal N.
Mistry (supra) did not take into consideration the aspect of
balancing the right to information and the right to privacy. The
petitioners have challenged the action of the respondentRBI,
vide which the RBI issued directions to the petitioners/Banks
to disclose certain information, which according to the
petitioners is not only contrary to the provisions as contained
in the RTI Act, the RBI Act and the Banking Regulation Act,
1949, but also adversely affects the right to privacy of such
Banks and their consumers. The RBI has issued such
directions in view of the decision of this Court in the case of
Jayantilal N. Mistry (supra) and Girish Mittal (supra). As
34
such, the petitioners would have no other remedy than to
approach this Court. As observed by Ranganath Misra, J. in
the case of A.R. Antulay (supra) that, this being the Apex
Court, no litigant has any opportunity of approaching any
higher forum to question its decision. The only remedy
available to the petitioners would be to approach this Court by
way of writ petition under Article 32 of the Constitution of India
for protection of the fundamental rights of their customers, who
are citizens of India.
43.We, therefore, hold that the preliminary objection as
raised is not sustainable. The same is rejected. I.A. No.51632
of 2022 in Writ Petition (Civil) No.1159 of 2019 and I.A.
No.54521 of 2022 in Writ Petition (Civil) No.683 of 2021 are
accordingly dismissed.
…….........................J.
[B.R. GAVAI]
…….........................J.
[C.T. RAVIKUMAR]
NEW DELHI;
SEPTEMBER 30, 2022.
35
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