The appellant contests the rulings of the Central Information Commissioner and the High Court of Bombay regarding information provided to banks under the Right to Information Act, 2005.
No Acts & Articles mentioned in this case
Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. 91 OF 2015
(Arising out of Transfer Petition (Civil) No. 707 of 2012)
Reserve Bank of India ……..Petitioner(s)
versus
Jayantilal N. Mistry …..Respondent(s)
With
TRANSFERRED CASE (CIVIL) NO. 92 OF 2015
(Arising out of Transfer Petition (Civil) No. 708 of 2012)
I.C.I.C.I Bank Limited …….. Petitioner(s)
versus
S.S. Vohra and others ………Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 93 OF 2015
(Arising out of Transfer Petition (Civil) No. 711 of 2012)
National Bank for Agriculture
and Rural Development ………Petitioner(s)
versus
Kishan Lal Mittal ………Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 94 OF 2015
(Arising out of Transfer Petition (Civil) No. 712 of 2012)
Reserve Bank of India ……….Petitioner(s)
versus
P.P. Kapoor ……….Respondent(s)
1
Page 2 TRANSFERRED CASE (CIVIL) NO. 95 OF 2015
(Arising out of Transfer Petition (Civil) No. 713 of 2012)
Reserve Bank of India ……….Petitioner(s)
versus
Subhas Chandra Agrawal ……….Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 96 OF 2015
(Arising out of Transfer Petition (Civil) No. 715 of 2012)
Reserve Bank of India ……….Petitioner(s)
versus
Raja M. Shanmugam ……….Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 97 OF 2015
(Arising out of Transfer Petition (Civil) No. 716 of 2012)
National Bank for Agriculture
and Rural Development ……….Petitioner(s)
versus
Sanjay Sitaram Kurhade ……….Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 98 OF 2015
(Arising out of Transfer Petition (Civil) No. 717 of 2012)
Reserve Bank of India ……….Petitioner(s)
versus
K.P. Muralidharan Nair ………..Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 99 OF 2015
(Arising out of Transfer Petition (Civil) No. 718 of 2012)
Reserve Bank of India ……….Petitioner(s)
versus
Ashwini Dixit ………..Respondent(s)
2
Page 3 TRANSFERRED CASE (CIVIL) NO. 100 OF 2015
(Arising out of Transfer Petition (Civil) No. 709 of 2012)
Reserve Bank of India ………Petitioner(s)
versus
A.Venugopal and another ………Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 101 OF 2015
(Arising out of Transfer Petition (Civil) No. 714 of 2012)
Reserve Bank of India ………Petitioner(s)
versus
Dr. Mohan K. Patil and others ………Respondent(s)
JUDGMENT
M.Y. EQBAL, J.
The main issue that arises for our consideration in these
transferred cases is as to whether all the information sought
for under the Right to Information Act, 2005 can be denied by
the Reserve Bank of India and other Banks to the public at
large on the ground of economic interest, commercial
confidence, fiduciary relationship with other Bank on the one
hand and the public interest on the other. If the answer to
above question is in negative, then upto what extent the
information can be provided under the 2005 Act.
3
Page 4 2.It has been contended by the RBI that it carries out
inspections of banks and financial institutions on regular
basis and the inspection reports prepared by it contain a wide
range of information that is collected in a fiduciary capacity.
The facts in brief of the Transfer Case No.91 of 2015 are that
during May-June, 2010 the statutory inspection of Makarpura
Industrial Estate Cooperative Bank Ltd. was conducted by RBI
under the Banking Regulation Act, 1949. Thereafter, in
October 2010, the Respondent sought following information
from the CPIO of RBI under the Act of 2005, reply to which is
tabulated hereunder:
Sr. No. Information sought Reply
1. Procedure Rules and
Regulations of Inspection
being carried out on Co-
operative Banks
RBI is conducting inspections
under Section 35 of the B.R. Act
1949 (AACS) at prescribed
intervals.
2. Last RBI investigation and
audit report carried out by
Shri Santosh Kumar during
23
rd
April, 2010 to 6
th
May,
2010 sent to Registrar of the
Cooperative of the Gujarat
State, Gandhinagar on
Makarpura Industrial Estate
Co-op Bank Ltd Reg. No.2808
The Information sought is
maintained by the bank in a
fiduciary capacity and was
obtained by Reserve Bank during
the course of inspection of the
bank and hence cannot be given to
the outsiders. Moreover, disclosure
of such information may harm the
interest of the bank & banking
system. Such information is also
exempt from disclosure under
Section 8(1) (a) & (e) of the RTI Act,
4
Page 5 2005.
3. Last 20 years inspection
(carried out with name of
inspector) report on above
bank and action taken report.
Same as at (2) above
4. (i) Reports on all co-operative
banks gone on liquidation
(ii) action taken against all
Directors and Managers for
recovery of public funds and
powers utilized by RBI and
analysis and procedure
adopted.
(i)Same as at (2) above
(ii)This information is not
available with the
Department
5. Name of remaining co-
operative banks under your
observations against
irregularities and action
taken reports
No specific information has
been sought
6. Period required to take
action and implementations
No specific information has
been sought
3.On 30.3.2011, the First Appellate Authority disposed of
the appeal of the respondent agreeing with the reply given by
CPIO in query No.2, 3 & first part of 4, relying on the decision
of the Full Bench of CIC passed in the case of Ravin
Ranchochodlal Patel and another vs. Reserve Bank of India .
Thereafter, in the second appeal preferred by the aggrieved
respondent, the Central Information Commission by the
impugned order dated 01.11.2011, directed RBI to provide
5
Page 6 information as per records to the Respondent in relation to
queries Nos.2 to 6 before 30.11.2011. Aggrieved by the
decision of the Central Information Commission (CIC),
petitioner RBI moved the Delhi High Court by way of a Writ
Petition inter alia praying for quashing of the aforesaid order of
the CIC. The High Court, while issuing notice, stayed the
operation of the aforesaid order.
4. Similarly, in Transfer Case No. 92 of 2015, the
Respondent sought following information from the CPIO of RBI
under the Act of 2005, reply to which is tabulated hereunder:
Sr.
No.
Information sought Reply
1.The Hon’ble FM made a
written statement on the Floor
of the House which inter alia
must have been made after
verifying the records from RBI
and the Bank must have the
copy of the facts as reported
by FM. Please supply copy of
the note sent to FM
In the absence of the specific
details, we are not able to provide
any information.
2.The Hon’ble FM made a
statement that some of the
banks like SBI, ICICI Bank
Ltd, Bank of Baroda, Dena
Bank, HSBC Bank etc. were
issued letter of displeasure for
violating FEMA guidelines for
opening of accounts where as
some other banks were even
We do not have this information.
6
Page 7 fined Rupees one crore for
such violations. Please give
me the names of the banks
with details of violations
committed by them.
3.‘Advisory Note’ issued to ICICI
Bank for account opened by
some fraudsters at its Patna
Branch Information sought
about “exact nature of
irregularities committed by the
bank under “FEMA”. Also give
list of other illegalities
committed by IBL and other
details of offences committed
by IBL through various
branches in India and abroad
along with action taken by the
Regulator including the names
and designations of his
officials branch name, type of
offence committed etc. The
exact nature of offences
committed by Patna Branch of
the bank and other branches
of the bank and names of his
officials involved, type of
offence committed by them
and punishment awarded by
concerned authority, names
and designation of the
designated authority, who
investigated the above case
and his findings and
punishment awarded.”
An Advisory Letter had been
issued to the bank in December,
2007 for the bank’s Patna branch
having failed to (a) comply with the
RBI guidelines on customer
identification, opening/operating
customer accounts, (b) the bank
not having followed the normal
banker’s prudence while opening
an account in question.
As regards the list of supervisory
action taken by us, it may be
stated that the query is too general
and not specific. Further, we may
state that Supervisory actions
taken were based on the scrutiny
conducted under Section 35 of the
Banking Regulation (BR) Act. The
information in the scrutiny report
is held in fiduciary capacity and
the disclosure of which can affect
the economic interest of the
country and also affect the
commercial confidence of the
bank. And such information is
also exempt from disclosure under
Section 8(1)(a)(d) & (e) of the RTI
Act (extracts enclosed). We,
therefore, are unable to accede to
your request.
4.Exact nature of irregularities
committed by ICICI Bank in
Hong Kong
In this regard, self explicit print
out taken from the website of
Securities and Futures
Commission, Hong Kong is
enclosed.
5.ICICI Bank’s Moscow Branch
involved in money laundering
act.
We do not have the information.
6.Imposition of fine on ICICI We do not have any information to
7
Page 8 Bank under Section 13 of the
PMLA for loss of documents in
floods .
furnish in this regard.
7.Copy of the Warning or
‘Advisory Note’ issued twice
issued to the bank in the last
two years and reasons
recorded therein.
Name and designation of the
authority who conducted this
check and his decision to
issue an advisory note only
instead of penalties to be
imposed under the Act.
As regards your request for
copies/details of advisory letters to
ICICI Bank, we may state that
such information is exempt from
disclosure under Section 8(1)(a)(d)
and (e) of the RTI Act. The
scrutiny of records of the ICICI
Bank is conducted by our
Department of Banking
Supervision (DBS). The Chief
General Manager-in charge of the
DBS, Centre Office Reserve Bank
of India is Shri S. Karuppasamy.
5.In this matter, it has been alleged by the petitioner RBI
that the respondent is aggrieved on account of his application
form for three-in-one account with the Bank and ICICI
Securities Limited (ISEC) lost in the floods in July, 2005 and
because of non-submission of required documents, the
Trading account with ISEC was suspended, for which
respondent approached the District Consumer Forum, which
rejected the respondent’s allegations of tempering of records
and dismissed the complaint of the respondent. His appeal
was also dismissed by the State Commission. Respondent
then moved an application under the Act of 2005 pertaining to
8
Page 9 the suspension of operation of his said trading account. As
the consumer complaint as well as the abovementioned
application did not yield any result for the respondent, he
made an application under the Act before the CPIO, SEBI,
appeal to which went up to the CIC, the Division Bench of
which disposed of his appeal upholding the decision of the
CPIO and the Appellate Authority of SEBI. Thereafter, in
August 2009, respondent once again made the present
application under the Act seeking aforesaid information.
Being aggrieved by the order of the appellate authority,
respondent moved second appeal before the CIC, who by the
impugned order directed the CPIO of RBI to furnish
information pertaining to Advisory Notes as requested by the
respondent within 15 working days. Hence, RBI approached
Bombay High Court by way of writ petition.
6.In Transfer Case No. 93 of 2015, the Respondent sought
following information from the CPIO of National Bank for
Agriculture and Rural Development under the Act of 2005,
reply to which is tabulated hereunder:-
9
Page 10 Sl.
No.
Information Sought Reply
1. Copies of inspection reports of
Apex Co-operative Banks of
various States/Mumbai DCCB
from 2005 till date
Furnishing of information is
exempt under Section 8(1)(a) of the
RTI Act.
2. Copies of all correspondences
with Maharashtra State
Govt./RBI/any other agency of
State/Central Co-operative Bank
from January, 2010 till date.
Different Departments in NABARD
deal with various issues related to
MSCB. The query is general in
nature. Applicant may please be
specific in query/information
sought.
3. Provide confirmed/draft minutes
of meetings of Governing
Board/Board of
Directors/Committee of Directors
of NABARD from April, 2007 till
date
Furnishing of information is
exempt under Sec. 8(1)(d) of the
RTI Act.
4. Provide information on
compliance of Section 4 of RTI
Act, 2005 by NABARD
Compliance available on the
website of NABARD i.e.
www.nabard.org
5. Information may be provided on a
CD
-
7.The First Appellate Authority concurred with the CPIO
and held that inspection report cannot be supplied in terms of
Section 8(1)(a) of the RTI Act. The Respondent filed Second
Appeal before the Central Information Commission, which was
allowed. The RBI filed writ petition before the High Court
challenging the order of the CIC dated 14.11.2011 on identical
10
Page 11 issue and the High Court stayed the operation of the order of
the CIC.
8.In Transfer Case No. 94 of 2015, the Respondent sought
following information from the CPIO of RBI under the Act of
2005, reply to which is tabulated hereunder:
Sl.
No.
Information Sought Reply
1. As mentioned at 2(a) what is
RBI doing about uploading the
entire list of Bank defaulters
on the bank’s website? When
will it be done? Why is it not
done?
Pursuant to the then Finance
Minister’s Budget Speech made in
Parliament on 28
th
February, 1994,
in order to alert the banks and FIs
and put them on guard against the
defaulters to other lending
institutions. RBI has put in place
scheme to collect details about
borrowers of banks and FIs with
outstanding aggregating Rs. 1 crore
and above which are classified as
‘Doubtful’ or ‘Loss or where suits
are filed, as on 31
st
March and 30
th
September each year. In February
1999, Reserve Bank of India had
also introduced a scheme for
collection and dissemination of
information on cases of willful
default of borrowers with
outstanding balance of Rs. 25 lakh
and above. At present, RBI
disseminates list of above said non
suit filed ‘doubtful’ and ‘loss’
borrowed accounts of Rs.1 crore
and above on half-yearly basis (i.e.
as on March 31 and September 30)
to banks and FIs. for their
confidential use. The list of non-
suit filed accounts of willful
defaulters of Rs. 25 lakh and above
is also disseminated on quarterly
11
Page 12 basis to banks and FIs for their
confidential use. Section 45 E of
the Reserve Bank of India Act 1934
prohibits the Reserve Bank from
disclosing ‘credit information’
except in the manner provided
therein.
(iii) However, Banks and FIs
were advised on October 1, 2002 to
furnish information in respect of
suit-filed accounts between Rs. 1
lakh and Rs. 1 crore from the
period ended March, 2002 in a
phased manner to CIBIL only.
CIBIL is placing the list of
defaulters (suit filed accounts) of
Rs. 1 crore and above and list of
willful defaulters (suit filed
accounts) of Rs. 25 lakh and above
as on March 31, 2003 and onwards
on its website (www.cibil.com)
9.The Central Information Commission heard the parties
through video conferencing. The CIC directed the CPIO of the
petitioner to provide information as per the records to the
Respondent in relation to query Nos. 2(b) and 2(c) before
10.12.2011. The Commission has also directed the Governor
RBI to display this information on its website before
31.12.2011, in fulfillment of its obligations under Section 4(1)
(b) (xvii) of the Right to Information Act, 2005 and to update it
each year.
12
Page 13 10.In Transfer Case No.95 of 2015, following information
was sought and reply to it is tabulated hereunder:
Sl.
No.
Information Sought Reply
1. Complete and detailed information
including related
documents/correspondence/file
noting etc of RBI on imposing fines on
some banks for violating rules like also
referred in enclosed news clipping
As the violations of which
the banks were issued
Show Cause Notices and
subsequently imposed
penalties and based on the
findings of the Annual
Financial Inspection (AFI) of
the banks, and the
information is received by
us in a fiduciary capacity,
the disclosure of such
information would
prejudicially affect the
economic interests of the
State and harm the bank’s
competitive position. The
SCNs/findings/reports/
associated
correspondences/orders are
therefore exempt from
disclosure in terms of the
provisions of Section 8(1)(a)
(d) and (e) of the RTI Act,
2005.
2. Complete list of banks which were
issued show cause notices before fine
was imposed as also referred in
enclosed news clipping mentioning
also default for which show cause
notice was issued to each of such
banks
2. Complete list of banks which were
issued show cause notices before fine
was imposed as also referred in
enclosed news clippings mentioning
also default for which show cause
notice was issued to each of such
banks.
-do-
3. List of banks out of those in query (2)
above where fine was not imposed
giving details like if their reply was
satisfactory etc.
Do
4. List of banks which were ultimately
found guilty and fines mentioning also
amount of fine on each of the bank
The names of the 19 banks
and details of penalty
imposed on them are
13
Page 14 and criterion to decide fine on each of
the bank
furnished in Annex 1.
Regarding the criterion for
deciding the fine, the
penalties have been
imposed on these banks for
contravention of various
directions and instructions
such as failure to carry out
proper due diligence on
user appropriateness and
suitability of products,
selling derivative products
to users not having proper
risk Management policies,
not verifying the
underlying /adequacy of
underlying and eligible
limits under past
performance route, issued
by RBI in respect of
derivative transactions.
5. Is fine imposed /action taken on some
other banks also other than as
mentioned in enclosed news clipping
No other bank was
penalized other than those
mentioned in the Annex, in
the context of press release
No.2010-2011/1555 of
April 26, 2011
6. If yes please provide details Not Applicable, in view of
the information provided in
query No.5
7. Any other information The query is not specific.
8. File notings on movement of this RTI
petition and on every aspect of this
RTI Petition
Copy of the note is
enclosed.
11.In the Second Appeal, the CIC heard the respondent via
telephone and the petitioner through video conferencing. As
14
Page 15 directed by CIC, the petitioner filed written submission. The
CIC directed the CPIO of the Petitioner to provide complete
information in relation to queries 1 2 and 3 of the original
application of the Respondent before 15.12.2011.
12.In Transfer Case No. 96 of 2015, the Respondent sought
following information from the CPIO of RBI under the Act of
2005, reply to which is tabulated hereunder:-
Sl.
No.
Information Sought Reply
1. Before the Orissa High Court RBI
has filed an affidavit stating that
the total mark to market losses
on account of currency
derivatives is to the tune of more
than Rs. 32,000 crores Please
give bank wise breakup of the
MTM Losses
The Information sought by you is
exempted under Section 8(1)(a) & (e)
of RTI Act, which state as under;
8(1) notwithstanding anything
contained in this Act, there shall be
no obligation to give any citizen
(a)information disclosure of
which would prejudicially affect
the sovereignty and integrity of
India the security strategic
scientific or economic interests of
the state, relation with foreign
State or lead to incitement of an
offence.
(e) Information available to a
person in his fiduciary
relationship unless the competent
authority is satisfied that larger
public interest warrants the
disclosure of such information.
2. What is the latest figure available
with RBI of the amount of losses
suffered by Indian Business
Please refer to our response to 1
above.
15
Page 16 houses? Please furnish the latest
figures bank wise and customer
wise.
3. Whether the issue of derivative
losses to Indian exporters was
discussed in any of the meetings
of Governor/Deputy Governor or
senior official of the Reserve
Bank of India? If so please
furnish the minutes of the
meeting where the said issue was
discussed
We have no information in this
matter.
4. Any other Action Taken Reports
by RBI in this regard.
We have no information in this
matter.
13.The CIC allowed the second appeal and directed the CPIO
FED of the Petitioner to provide complete information in
queries 1, 2, 9 and 10 of the original application of the
Respondent before 05.01.2012. The CPIO, FED complied with
the order of the CIC in so far queries 2, 9 and 10 are
concerned. The RBI filed writ petition for quashing the order of
CIC so far as it directs to provide complete information as per
record on query No.1.
14.In Transfer Case No. 97 of 2015, the Respondent sought
following information from the CPIO of National Bank for
16
Page 17 Agriculture and Rural Development under the Act of 2005,
reply to which is tabulated hereunder:-
Sl.
No.
Information Sought Reply
1. The report made by NABARD regarding 86
N.P.A. Accounts for Rs. 3806.95 crore of
Maharashtra State Co-operative Bank Ltd. (if
any information of my application is not
available in your Office/Department/
Division/Branch, transfer this application to
the concerned Office/Department/
Division/Branch and convey me accordingly
as per the provision of Section 6 (3) of Right
to Information Act, 2005.
Please refer to your
application dated 19
April, 2011 seeking
information under the
RTI Act, 2005 which
was received by us on
06
th
May, 2011. In
this connection, we
advise that the
questions put forth by
you relate to the
observations made in
the Inspection Report
of NABARD pertaining
to MSCB which are
confidential in nature.
Since furnishing the
information would
impede the process of
investigation or
apprehension or
prosecution of
offenders, disclosure
of the same is
exempted under
Section 8(1)(h) of the
Act.
15.In Transfer Case No. 98 of 2015, the Respondent sought
following information from the CPIO of RBI under the Act of
2005, reply to which is tabulated hereunder:-
17
Page 18 Sl.
No.
Information Sought Reply
1. What contraventions and violations were
made by SCB in respect of RBI instructions
on derivatives for which RBI has imposed
penalty of INR 10 lakhs on SCB in exercise
of its powers vested under Section 47(1)(b)
of Banking Regulation Act, 1949 and as
stated in the RBI press release dated April
26, 2011 issued by Department of
Communications RBI
The bank was
penalized along with 18
other banks for
contravention of
various instructions
issued by the Reserve
Bank of India in
respect of derivatives,
such as, failure to carry
out due diligence in
regard to suitability of
products, selling
derivative products to
users not having risk
management policies
and not verifying the
underlying/adequacy of
underlying and eligible
limits under past
performance route. The
information is also
available on our
website under press
releases.
2. Please provide us the copies/details of all
the complaints filed with RBI against SCB,
accusing SCB of mis-selling derivative
products, failure to carry out due diligence
in regard to suitability of products, not
verifying the underlying/adequacy of
underlying and eligible limits under past
performance and various other non-
compliance of RBI instruction on
derivatives.
Also, please provide the above information
in the following format
. Date of the complaint
Name of the complaint
Subject matter of the complaint
Brief description of the facts and
Complaints are
received by Reserve
Bank of India and as
they constitute the
third party information,
the information
requested by you
cannot be disclosed in
terms of Section 8(1)(d)
of the RTI Act, 2005.
18
Page 19 accusations made by the complaint.
Any other information available with RBI
with respect to violation/contraventions by
SCB of RBI instructions on derivatives.
3. Please provide us the copies of all the
written replies/correspondences made by
SCB with RBI and the recordings of all the
oral submissions made by SCB to defend
and explain the violations/contraventions
made by SCB
The action has been
taken against the bank
based on the findings
of the Annual Financial
Inspection (AFI) of the
bank which is
conducted under the
provisions of Sec.35 of
the BR Act, 1949. The
findings of the
inspection are
confidential in nature
intended specifically for
the supervised entities
and for corrective
action by them. The
information is received
by us in fiduciary
capacity disclosure of
which may prejudicially
affect the economic
interest of the state.
As such the
information cannot be
disclosed in terms of
Section 8(1) (a) and (e)
of the RTI Act, 2005
4. Please provide us the details/copies of the
findings recordings, enquiry reports,
directive orders file notings and/or any
information on the investigations conducted
by RBI against SCB in respect of non-
compliance by SCB thereby establishing
violations by SCBV in respect of non
compliances of RBI instructions on
derivatives.
Please also provide the above information
in the following format.
. Brief violations/contraventions made by
-do-
19
Page 20 SCB
. In brief SCB replies/defense/explanation
against each violations/contraventions
made by it under the show cause notice.
. RBI investigations/notes/on the SCB
Replies/defense/explanations for each of
the violation/contravention made by SCB.
. RBI remarks/findings with regard to the
violations/contraventions made by SCB.
16.In Transfer Case No. 99 of 2015, the Respondent sought
following information from the CPIO of RBI under the Act of
2005, reply to which is tabulated hereunder:-
Sl.
No.
Information Sought Reply
1. That, what action has the department
taken against scams/financial
irregularities of United Mercantile
Cooperative Bank Ltd as mentioned in the
enclosed published news. Provide day to
day progress report of the action taken.
1. Enquiry was
carried out against
scams/financial
irregularities of United
Mercantile Cooperative
Bank Ltd. as mentioned
in the enclosed
published news.
2. Note/explanation
has been called for from
the bank vide our letter
dated 8
th
July, 2011
regarding errors
mentioned in enquiry
report.
3. The other
information asked here
is based on the
conclusions of
Inspection Report. We
20
Page 21 would like to state that
conclusions found
during inspections are
confidential and the
reports are finalized on
the basis of information
received from banks. We
received the information
from banks in a
confident capacity.
Moreover, disclosure of
such information may
cause damage to the
banking system and
financial interests of the
state. Disclosure of
such type of information
is exempted under
Section 8(1)(a) and (e) of
RTI Act, 2005.
2. That permission for opening how many
extension counters was obtained by United
Mercantile Cooperative Bank Ltd from RBI.
Provide details of expenditure incurred for
constructing the extension counters. Had
the bank followed tender system for these
constructions, if yes, provide details of
concerned tenders.
United Mercantile
Cooperative Bank Ltd.
was permitted to open 5,
extension counters.
The information
regarding expenditure
incurred on
construction of these
extension counters and
tenders are not available
with Reserve Bank of
India.
17.In Transfer Case No. 100 of 2015, the Respondent sought
following information from the CPIO of RBI under the Act of
2005, reply to which is tabulated hereunder:-
21
Page 22 Sl.
No.
Information Sought Reply
1. Under which Grade The George Town Co-
operative Bank Ltd., Chennai, has been
categorised as on 31.12.2006?
The classification of
banks into various
grades are done on the
basis of inspection
findings which is based
on information/
documents obtained in
a fiduciary capacity and
cannot be disclosed to
outsiders. It is also
exempted under
Section 8(1)(e) of right
to Information Act,
2005.
18.The Appellate Authority observed that the CPIO, UBD has
replied that the classification of banks into various grades is
done on the basis of findings recorded in inspection which are
based on information/documents obtained in a fiduciary
capacity and cannot be disclosed to outsiders. The CPIO, UBD
has stated that the same is exempted under Section 8(1)(e) of
RTI Act. Apart from the fact that information sought by the
appellant is sensitive and cannot be disclosed, it could also
harm the competitive position of the co-operative bank.
Therefore, exemption from disclosure of the Information is
available under Section 8(1)(d) of the RTI Act.
22
Page 23 19.In Transfer Case No. 101 of 2015, with regard to
Deendayal Nagri Shakari Bank Ltd, District Beed, the
Respondent sought following information from the CPIO of RBI
under the Act of 2005, reply to which is tabulated hereunder:-
Sl.
No.
Information Sought Reply
1. Copies of complaints received by RBI
against illegal working of the said bank,
including violations of the Standing
Orders of RBI as well as the provisions
under Section 295 of the Companies Act,
1956.
Disclosure of
information regarding
complaints received
from third parties
would harm the
competitive position of
a third party. Further
such information is
maintained in a
fiduciary capacity and
is exempted from
disclosure under
Sections 8(1)(d) and (e)
of the RTI Act.
2. Action initiated by RBI against the said
bank, including all correspondence
between RBI and the said bank officials.
(a) A penalty of Rs. 1
lakh was imposed on
Deendayal Nagri
Sahakari Bank Ltd. for
violation of directives
on loans to
directors/their
relatives/concerns in
which they are
interested. The bank
paid the penalty on
08.10.2010.
(b) As regards
correspondence
between RBI and the,
co-operative bank, it is
advised that such
information is
maintained by RBI in
23
Page 24 fiduciary capacity and
hence cannot be given
to outsiders. Moreover
disclosure of such
information may harm
the interest of the bank
and banking system.
Such information is
exempt from disclosure
under Section 8(1)(a)
and (e) of the RTI Act.
3. Finding of the enquiry made by RBI,
actions proposed and taken against the
bank and its officials-official notings,
decisions, and final orders passed and
issued.
Such information is
maintained by the bank
in a fiduciary capacity
and is obtained by RBI
during the course of
inspection of the bank
and hence cannot be
given to outsiders. The
disclosure of such
information would
harm the competitive
position of a third
party. Such
information is,
therefore, exempted
from disclosure under
Section 8(1)(d) and (e)
of the RTI Act.
As regards action taken
against the bank, are
reply at S. No.2 (a)
above.
4. Confidential letters received by RBI from
the Executive Director of Vaishnavi
Hatcheries Pvt. Ltd. complaining about
the illegal working and pressure policies of
the bank and its chairman for misusing
the authority of digital signature for
sanction of the backdated resignations of
the chairman of the bank and few other
directors of the companies details of
action taken by RBI on that.
See reply at S. NO.2 (a)
above.
24
Page 25 20.The First Appellate Authority observed that the CPIO had
furnished the information available on queries 2 and 4.
Further information sought in queries 1 and 3 was exempted
under Section 8(1)(a)(d) and (e) of the RTI Act.
21.Various transfer petitions were, therefore, filed seeking
transfer of the writ petitions pending before different High
Courts. On 30.5.2015, while allowing the transfer petitions
filed by Reserve Bank of India seeking transfer of various writ
petitions filed by it in the High Courts of Delhi and Bombay,
this Court passed the following orders:
“Notice is served upon the substantial number of
respondents. Learned counsel for the respondents
have no objection if Writ Petition Nos. 8400 of 2011,
8605 of 2011, 8693 of 2011, 8583 of 2011, 32 of 2012,
685 of 2012, 263 of 2012 and 1976 of 2012 pending in
the High Court of Delhi at New Delhi and Writ Petition
(L) Nos. 2556 of 2011, 2798 of 2011 and 4897 of 2011
pending in the High Court of Bombay are transferred
to this Court and be heard together. In the meanwhile,
the steps may be taken to serve upon the unserved
respondents.
Accordingly, the transfer petitions are allowed and the
above mentioned writ petitions are withdrawn to this
Court. The High Court of Delhi and the High Court of
Bombay are directed to remit the entire record of the
said writ petitions to this Court within four weeks.”
25
Page 26 22.Mr. T.R. Andhyarujina, learned senior counsel appearing
for the petitioner-Reserve Bank of India, assailed the
impugned orders passed by the Central Information
Commissioner as illegal and without jurisdiction. Learned
Counsel referred various provisions of The Reserve Bank of
India Act, 1934; The Banking Regulation Act, 1949 and The
Credit Information Companies (Regulation) Act, 2005 and
made the following submissions:-
I) The Reserve Bank of India being the statutory
authority has been constituted under the Reserve Bank of
India Act, 1934 for the purpose of regulating and
controlling the money supply in the country. It also acts as
statutory banker with the Government of India and State
Governments and manages their public debts. In addition,
it regulates and supervises Commercial Banks and
Cooperative Banks in the country. The RBI exercises
control over the volume of credit, the rate of interest
chargeable on loan and advances and deposits in order to
ensure the economic stability. The RBI is also vested with
the powers to determine “Banking Policy” in the interest of
banking system, monetary stability and sound economic
growth.
The RBI in exercise of powers of powers conferred under
Section 35 of the Banking Regulation Act, 1949 conducts
inspection of the banks in the country.
II) The RBI in its capacity as the regulator and
supervisor of the banking system of the country access to
various information collected and kept by the banks. The
inspecting team and the officers carry out inspections of
different banks and much of the information accessed by
the inspecting officers of RBI would be confidential.
Referring Section 28 of the Banking Regulation Act, it was
submitted that the RBI in the public interest may publish
26
Page 27 the information obtained by it, in a consolidated form but
not otherwise.
III)The role of RBI is to safeguard the economic and
financial stability of the country and it has large contingent
of expert advisors relating to matters deciding the economy
of the entire country and nobody can doubt the bona fide of
the bank. In this connection, learned counsel referred the
decision of this Court in the case of Peerless General
Finance and Investment Co. Limited and Another Vs.
Reserve Bank of India, 1992 Vol. 2 SCC 343.
IV)Referring the decision in the case of B.
Suryanarayana Vs. N. 1453 The Kolluru Parvathi Co-
Op. Bank Ltd., 1986 AIR (AP) 244, learned counsel
submitted that the Court will be highly chary to enter into
and interfere with the decision of Reserve Bank of India.
Learned Counsel also referred to the decision in the case of
Peerless General Finance and Investment Co. Limited
and Another Vs. Reserve Bank of India, 1992 Vol. 2 SCC
343 and contended that Courts are not to interfere with the
economic policy which is a function of the experts.
V) That the RBI is vested with the responsibility of
regulation and supervision of the banking system. As part
of its supervisory role, RBI supervises and monitors the
banks under its jurisdiction through on-site inspection
conducted on annual basis under the statutory powers
derived by it under section 35 of the Banking Regulation
Act 1949, off-site returns on key financial parameters and
engaging banks in dialogue through periodical meetings.
RBI may take supervisory actions where warranted for
violations of its guidelines/directives. The supervisory
actions would depend on the seriousness of the offence,
systemic implications and may range from imposition of
penalty, to issue of strictures or letters of warning. While
RBI recognizes and promotes enhanced transparency in
banks disclosures to the public, as transparency
strengthens market discipline, a bank may not be able to
disclose all data that may be relevant to assess its risk
profile, due to the inherent need to preserve confidentially
in relation to its customers. In this light, while mandatory
disclosures include certain prudential parameters such as
capital adequacy, level of Non Performing Assets etc., the
supervisors themselves may not disclose all or some
information obtained on-site or off-site. In some countries,
wherever there are supervisory concerns, “prompt corrective
action” programmes are normally put in place, which may
or may not be publicly disclosed. Circumspection in
27
Page 28 disclosures by the supervisors arises from the potential
market reaction that such disclosure might trigger, which
may not be desirable. Thus, in any policy of transparency,
there is a need to build processes which ensure that the
benefits of supervisory disclosure are appropriately weighed
against the risk to stakeholders, such as depositors.
VI)As per the RBI policy, the reports of the annual
financial inspection, scrutiny of all banks/ financial
institutions are confidential document cannot be disclosed.
As a matter of fact, the annual financial inspection/
scrutiny report reflect the supervisor’s critical assessment
of banks and financial institutions and their functions.
Disclosure of these scrutiny and information would create
misunderstanding/ misinterpretation in the minds of the
public. That apart, this may prove significantly counter
productive. Learned counsel submitted that the disclosure
of information sought for by the applicant would not serve
the public interest as it will give adverse impact in public
confidence on the bank. This has serious implication for
financial stability which rests on public confidence. This
will also adversely affect the economic interest of the State
and would not serve the larger public interest.
23.The specific stand of petitioner Reserve Bank of India is
that the information sought for is exempted under Section 8(1)
(a), (d) and (e) of the Right to Information Act, 2005. As the
regulator and supervisor of the banking system, the RBI has
discretion in the disclosure of such information in public
interest.
24.Mr. Andhyarujina, learned senior counsel, referred
various decisions to the High Court and submitted that the
disclosure of information would prejudicially affect the
28
Page 29 economic interest of the State. Further, if the information
sought for is sensitive from the point of adverse market
reaction leading to systematic crisis for financial stability.
25.Learned senior counsel put heavy reliance on the Full
Bench decision of the Central Information Commissioner and
submitted that while passing the impugned order, the Central
Information Commissioner completely overlooked the Full
Bench decision and ignored the same. According to the
learned counsel, the Bench, which passed the impugned
order, is bound to follow the Full Bench decision. The
Commission also erred in holding that the Full Bench decision
is per incuriam as the Full Bench has not considered the
statutory provisions of Section 8 (2) of the Right to Information
Act, 2005.
26.Learned senior counsel also submitted that the
Commission erred in holding that even if the information
sought for is exempted under Section 8(1) (a), (d) or (e) of the
Right to Information Act, Section 8(2) of the RTI Act would
mandate the disclosure of the information.
29
Page 30 27.Learned senior counsel further submitted that the basic
question of law is whether the Right to Information Act, 2005
overrides various provisions of special statutes which confer
confidentiality in the information obtained by the RBI.; If the
Respondents are right in their contention, these statutory
provisions of confidentiality in the Banking Regulation Act,
1949, the Reserve Bank of India Act, 1934 and the Credit
Information Companies (Regulation) Act, 2005 would be
repealed or overruled by the Right to Information Act, 2005.
28.Under the Banking Regulation Act, 1949, the Reserve
Bank of India has a right to obtain information from the banks
under Section 27. These information can only be in its
discretion published in such consolidated form as RBI deems
fit. Likewise under Section 34A production of documents of
confidential nature cannot be compelled. Under sub-section
(5) of Section 35, the Reserve Bank of India may carry out
inspection of any bank but its report can only be disclosed if
the Central Government orders the publishing of the report of
the Reserve Bank of India when it appears necessary.
30
Page 31 29.Under Section 45E of the Reserve Bank of India Act,
1934, disclosure of any information relating to credit
information submitted by banking company is confidential
and under Section 45E(3) notwithstanding anything contained
in any law no court, tribunal or authority can compel the
Reserve Bank of India to give information relating to credit
information etc.
30.Under Section 17(4) of the Credit Information Companies
(Regulation) Act, 2005, credit information received by the
credit information company cannot be disclosed to any person.
Under Section 20, the credit information company has to
adopt privacy principles and under Section 22 there cannot be
unauthorized access to credit information.
31.It was further contended that the Credit Information
Companies Act, 2005 was brought into force after the Right to
Information act, 2005 w.e.f. 14.12.2006. It is significant to
note that Section 28 of Banking Regulation Act, 1949 was
amended by the Credit Information Companies (Regulation)
Act, 2005. This is a clear indication that the Right to
31
Page 32 Information Act, 2005 cannot override credit information
sought by any person in contradiction to the statutory
provisions for confidentiality.
32.This is in addition to other statutory provisions of privacy
in Section 44 of State Bank of India Act, 1955, Section 52,
State Bank of India (Subsidiary Banks) Act, 1959, Section 13
of the Banking Companies (Acquisition & Transfer of
Undertakings) Act, 1970.
33.The Right to Information Act, 2005 is a general provision
which cannot override specific provisions relating to
confidentiality in earlier legislation in accordance with the
principle that where there are general words in a later statute
it cannot be held that the earlier statutes are repealed altered
or discarded.
34.Learned counsel submitted that Section 22 of the Right
to Information Act, 2005 cannot have the effect of nullifying
and repealing earlier statutes in relation to confidentiality.
This has been well settled by this Court in
32
Page 33 a)Raghunath vs. state of Karnataka 1992(1) SCC
335 at p.348 pages 112 and 114
b) ICICI Bank vs. SIDCO Leather etc. , 2006(10)
SCC 452 at p. 466, paras 36 & 37
c) Central Bank vs. Kerala, 2009 (4) SCC 94 at p.
132-133 para 104
d) AG Varadharajalu vs. Tamil Nadu , 1998 (4)
SCC 231 at p. 236 para 16.
Hence, the Right to Information Act, 2005 cannot override the
provisions for confidentiality conferred on the RBI by the
earlier statutes referred to above.
35.The Preamble of the RTI Act, 2005 itself recognizes the
fact that since the revealing of certain information is likely to
conflict with other public interests like “the preservation of
confidentiality of sensitive information”, there is a need to
harmonise these conflicting interests. It is submitted that
certain exemptions were carved out in the RTI Act to
harmonise these conflicting interests. This Court in Central
Board of Secondary Education and Anr. vs. Aditya
Bandopadhyay and Ors, (2011)8 SCC 497, has observed as
under:-
33
Page 34 “When trying to ensure that the right to information
does not conflict with several other public interests (which
includes efficient operations of the Governments,
preservation of confidentiality of sensitive information,
optimum use of limited fiscal resources, etc.), it is difficult
to visualise and enumerate all types of information which
require to be exempted from disclosure in public interest.
The legislature has however made an attempt to do so. The
enumeration of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier Act,
that is, Section 8 of the Freedom to Information Act, 2002.
The courts and Information Commissions enforcing the
provisions of the RTI Act have to adopt a purposive
construction, involving a reasonable and balanced
approach which harmonises the two objects of the Act,
while interpreting Section 8 and the other provisions of the
Act.”
36.Apart from the legal position that the Right to
Information Act, 2005 does not override statutory provisions
of confidentiality in other Act, it is submitted that in any case
Section 8(1)(a) of the Right to Information Act, 2005 states
that there is no obligation to give any information which pre-
judiciously affects the economic interests of the States.
Disclosure of such vital information relating to banking would
pre-judiciously affect the economic interests of the State. This
was clearly stated by the Full Bench of the Central Information
Commission by its Order in the case of Ravin Ranchchodlal
Patel (supra). Despite this emphatic ruling individual
Commissioners of the Information have disregarded it by
34
Page 35 holding that the decision of the Full Bench was per incurium
and directed disclosure of information.
37.Other exceptions in Section 8, viz 8(1)(a)(d), 8(1)(e) would
also apply to disclosure by the RBI and banks. In sum,
learned senior counsel submitted that the RBI cannot be
directed to disclose information relating to banking under the
Right to Information Act, 2005.
38.Mr. Prashant Bhushan, learned counsel appearing for
the respondents in Transfer Case Nos.94 & 95 of 2015, began
his arguments by referring the Preamble of the Constitution
and submitted that through the Constitution it is the people
who have created legislatures, executives and the judiciary to
exercise such duties and functions as laid down in the
constitution itself.
39. The right to information regarding the functioning of
public institutions is a fundamental right as enshrined in
Article 19 of the Constitution of India. This Hon’ble Court has
declared in a plethora of cases that the most important value
35
Page 36 for the functioning of a healthy and well informed democracy
is transparency. Mr. Bhushan referred Constitution Bench
judgment of this Court in the case of State of U.P. vs. Raj
Narain, AIR 1975 SC 865, and submitted that it is a
Government’s responsibility like ours, where all the agents of
the public must be responsible for their conduct, there can be
but few secrets. The people of this country have a right to
know every public act, everything that is done in a public way,
by their functionaries. The right to know, which is derived
from the concept of freedom of speech, though not absolute, is
a factor which should make one wary, when secrecy is claimed
for transactions which can, at any rate, have no repercussion
on public security. To cover with veil of secrecy, the common
routine business is not in the interest of public.
40.In the case of S.P. Gupta v. President of India and
Ors., AIR 1982 SC 149, a seven Judge Bench of this Court
made the following observations regarding the right to
information:-
“There is also in every democracy a certain amount of
public suspicion and distrust of Government, varying of
course from time to time according to its performance,
36
Page 37 which prompts people to insist upon maximum exposure of
its functioning. It is axiomatic that every action of the
Government must be actuated by public interest but even
so we find cases, though not many, where Governmental
action is taken not for public good but for personal gain or
other extraneous considerations. Sometimes Governmental
action is influenced by political and other motivations and
pressures and at times, there are also instances of misuse
or abuse of authority on the part of the executive. Now, if
secrecy were to be observed in the functioning of
Government and the processes of Government were to be
kept hidden from public scrutiny, it would tend to promote
and encourage oppression, corruption and misuse or abuse
of authority, for it would all be shrouded in the veil of
secrecy without any public accountability. But if there is an
open Government with means of information available to
the public, there would be greater exposure of the
functioning of Government and it would help to assure the
people a better and more efficient administration. There can
be little doubt that exposure to public gaze and scrutiny is
one of the surest means of achieving a clean and healthy
administration. It has been truly said that an open
Government is clean Government and a powerful safeguard
against political and administrative aberration and
inefficiency.”
41.In the case of the Union of India vs. Association for
Democratic Reforms, AIR 2002 SC 2112, while declaring that
it is part of the fundamental right of citizens under Article
19(1)(a) to know the assets and liabilities of candidates
contesting election to the Parliament or the State Legislatures,
a three Judge Bench of this Court held unequivocally that:-
“The right to get information in a democracy is recognized all
throughout and is a natural right flowing from the concept of
democracy (Para 56).” Thereafter, legislation was passed
37
Page 38 amending the Representation of People Act, 1951 that
candidates need not provide such information. This Court in
the case of PUCL vs. Union of India , (2003) 4 SCC 399,
struck down that legislation by stating: “It should be properly
understood that the fundamental rights enshrined in the
Constitution such as, right to equality and freedoms have no
fixed contents. From time to time, this Court has filled in the
skeleton with soul and blood and made it vibrant. Since the
last more than 50 years, this Court has interpreted Articles
14, 19 and 21 and given meaning and colour so that the
nation can have a truly republic democratic society.”
42.The RTI Act, 2005, as noted in its very preamble, does
not create any new right but only provides machinery to
effectuate the fundamental right to information. The
institution of the CIC and the SICs are part of that machinery.
The preamble also inter-alia states “… democracy requires an
informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to
38
Page 39 hold Governments and their instrumentalities accountable to
the governed.”
43.The submission of the RBI that exceptions be carved out
of the RTI Act regime in order to accommodate provisions of
RBI Act and Banking Regulation Act is clearly misconceived.
RTI Act, 2005 contains a clear provision (Section 22) by virtue
of which it overrides all other Acts including Official Secrets
Act. Thus, notwithstanding anything to the contrary
contained in any other law like RBI Act or Banking Regulation
Act, the RTI Act, 2005 shall prevail insofar as transparency
and access to information is concerned. Moreover, the RTI Act
2005, being a later law, specifically brought in to usher
transparency and to transform the way official business is
conducted, would have to override all earlier practices and
laws in order to achieve its objective. The only exceptions to
access to information are contained in RTI Act itself in
Section 8.
39
Page 40 44.In T.C.No.94 of 2015, the RTI applicant Mr. P.P. Kapoor
had asked about the details of the loans taken by the
industrialists that have not been repaid, and he had asked
about the names of the top defaulters who have not repaid
their loans to public sector banks. The RBI resisted the
disclosure of the information claiming exemption under
Section 8(1) (a) and 8(1)(e) of the RTI Act on the ground that
disclosure would affect the economic interest of the country,
and that the information has been received by the RBI from
the banks in fiduciary capacity. The CIC found these
arguments made by RBI to be totally misconceived in facts and
in law, and held that the disclosure would be in public
interest.
45.In T.C.No.95 of 2015, the RTI applicant therein Mr.
Subhash Chandra Agrawal had asked about the details of the
show cause notices and fines imposed by the RBI on various
banks. The RBI resisted the disclosure of the information
claiming exemption under Section 8(1)(a),(d) and 8(1) (e) of the
RTI Act on the ground that disclosure would affect the
40
Page 41 economic interest of the country, the competitive position of
the banks and that the information has been received by RBI
in fiduciary capacity. The CIC, herein also, found these
arguments made by RBI to be totally misconceived in facts and
in law and held that the disclosure would be in public interest.
46.In reply to the submission of the petitioner about
fiduciary relationship, learned counsel submitted that the
scope of Section 8(1)(e) of the RTI Act has been decided by this
Court in Central Board of Secondary Education vs. Aditya
Bandopadhyay, (2011) 8 SCC 497, wherein, while rejecting
the argument that CBSE acts in a fiduciary capacity to the
students, it was held that:
“…In a philosophical and very wide sense, examining bodies
can be said to act in a fiduciary capacity, with reference to
students who participate in an examination, as a
Government does while governing its citizens or as the
present generation does with reference to the future
generation while preserving the environment. But the word
‘information available to a person in his fiduciary
relationship’ are used in Section 8(1) (e) of the RTI Act in its
normal and well recognized sense, that is to refer to persons
who act in a fiduciary capacity, with reference to specific
beneficiary or beneficiaries who are to be expected to be
protected or benefited by the action of the fiduciary.”
41
Page 42 47.We have extensively heard all the counsels appearing for
the petitioner Banks and respondents and examined the law
and the facts.
48.While introducing the Right to Information Bill, 2004 a
serious debate and discussion took place. The then Prime
Minister while addressing the House informed that the RTI Bill
is to provide for setting out practical regime of right to
information for people, to secure access to information under
the control of public authorities in order to promote
transparency and accountability in the working of every public
authority. The new legislation would radically alter the ethos
and culture of secrecy through ready sharing of information by
the State and its agencies with the people. An era of
transparency and accountability in governance is on the anvil.
Information, and more appropriately access to information
would empower and enable people not only to make informed
choices but also participate effectively in decision making
processes. Tracing the origin of the idea of the then Prime
Minister who had stated, “Modern societies are information
42
Page 43 societies. Citizens tend to get interested in all fields of life and
demand information that is as comprehensive, accurate and
fair as possible.” In the Bill, reference has also been made to
the decision of the Supreme Court to the effect that Right to
Information has been held as inherent in Article 19 of our
Constitution, thereby, elevating it to a fundamental right of the
citizen. The Bill, which sought to create an effective
mechanism for easy exercise of this Right, was held to have
been properly titled as “Right to Information Act”. The Bill
further states that a citizen has to merely make a request to
the concerned Public Information Officer specifying the
particulars of the information sought by him. He is not
required to give any reason for seeking information, or any
other personal details except those necessary for contacting
him. Further, the Bill states:-
“The categories of information exempted from
disclosure are a bare minimum and are contained in
clause 8 of the Bill. Even these exemptions are not
absolute and access can be allowed to them in public
interest if disclosure of the information outweighs
the harm to the public authorities. Such disclosure
has been permitted even if it is in conflict with the
provisions of the Official Secrets Act, 1923.
Moreover, barring two categories that relate to
information disclosure – which may affect
43
Page 44 sovereignty and integrity of India etc., or information
relating to Cabinet papers etc.-all other categories of
exempted information would be disclosed after
twenty years.
There is another aspect about which information is
to be made public. We had a lengthy discussion and
it is correctly provided in the amendment under
clause 8 of the Bill. The following information shall
be exempted from disclosure which would
prejudicially affect the sovereignty and integrity of
India; which has been expressly forbidden; which
may result in a breach of privileges of Parliament or
the Legislature; and also information pertaining to
defence matters. They are listed in clause 8 (a) to (g).
There are exceptions to this clause. Where it is
considered necessary that the information will be
divulged in the interest of the State, that will be
done. There must be transparency in public life.
There must be transparency in administration and
people must have a right to know what has actually
transpired in the secretariat of the State as well as
the Union Ministry. A citizen will have a right
because it will be safe to prevent corruption. Many
things are done behind the curtain. Many shoddy
deals take place in the secretariats of the Central
and State Governments and the information will
always be kept hidden. Such practice should not be
allowed in a democratic country like ours. Ours is a
republic. The citizenry should have a right to know
what transpired in the secretariat. Even Cabinet
papers, after a decision has been taken, must be
divulged as per the provisions of this amendment. It
cannot be hidden from the knowledge of others.”
49.Addressing the House, it was pointed out by the then
Prime Minister that in our country, Government expenditure
both at the Central and at the level of the States and local
bodies, account for nearly 33% of our Gross National Product.
At the same time, the socio-economic imperatives require our
44
Page 45 Government to intervene extensively in economic and social
affairs. Therefore, the efficiency and effectiveness of the
government processes are critical variables, which will
determine how our Government functions and to what extent
it is able to discharge the responsibilities entrusted. It was
pointed out that there are widespread complaints in our
country about wastefulness of expenditure, about corruption,
and matter which have relations with the functioning of the
Government. Therefore, it was very important to explore new
effective mechanism to ensure that the Government will
purposefully and effectively discharge the responsibilities
entrusted to it.
50.Finally the Right to Information Act was passed by the
Parliament called “The Right to Information Act, 2005”. The
Preamble states:-
“An Act to provide for setting out the practical
regime of right to information for citizens to secure
access to information under the control of public
authorities, in order to promote transparency and
accountability in the working of every public
authority, the constitution of a Central Information
Commission and State Information Commissions and
for matters connected therewith or incidental
thereto.
45
Page 46 WHEREAS the Constitution of India has
established democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of information
which are vital to its functioning and also to contain
corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in
actual practice is likely to conflict with other public
interests including efficient operations of the
Governments, optimum use of limited fiscal
resources and the preservation of confidentiality of
sensitive information;
AND WHEREAS it is necessary to harmonise
these conflicting interest while preserving the
paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide
for furnishing certain information to citizens who
desire to have it.”
51.Section 2 of the Act defines various authorities and the
words. Section 2(j) defines right to information as under :-
“2(j)“right to information” means the right to
information accessible under this Act which is held
by or under the control of any public authority and
includes the right to-
(i)inspection of work, documents, records;
(ii)taking notes, extracts, or certified
copies of documents or records;
(iii)taking certified samples of material;
(iv)obtaining information in the form of
diskettes, floppies, tapes, video
cassettes or in any other electronic
mode or through printouts where such
information is stored in a computer or
in any other device;”
46
Page 47 52.Section 3 provides that all citizens shall have the right to
information subject to the provisions of this Act. Section 4
makes it obligatory on all public authorities to maintain
records in the manner provided therein. According to Section
6, a person who desires to obtain any information under the
Act shall make a request in writing or through electronic
means in English or Hindi in the official language of the area
in which the application is being made to the competent
authority specifying the particulars of information sought by
him or her. Sub-section (ii) of Section 6 provides that the
applicant making request for information shall not be required
to give any reason for requesting the information or any other
personal details except those that may be necessary for
contacting him. Section 7 lays down the procedure for
disposal of the request so made by the person under Section 6
of the Act. Section 8, however, provides certain exemption
from disclosure of information. For better appreciation
Section 8 is quoted hereinbelow:-
47
Page 48 “8. Exemption from disclosure of information.—
(1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the
security, strategic, scientific or economic interests of
the State, relation with foreign State or lead to
incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State
Legislature;
(d) information including commercial confidence, trade
secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party,
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary
relationship, unless the competent authority is
satisfied that the larger public interest warrants the
disclosure of such information;
(f) information received in confidence from foreign
government;
(g) information, the disclosure of which would
endanger the life or physical safety of any person or
identify the source of information or assistance given
in confidence for law enforcement or security
purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the
reasons thereof, and the material on the basis of which
the decisions were taken shall be made public after the
decision has been taken, and the matter is complete,
or over: Provided further that those matters which
come under the exemptions specified in this section
shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has not relationship to any
48
Page 49 public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the
State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the
larger public interest justifies the disclosure of such
information: Provided that the information, which
cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
Act, 1923 (19 of 1923) nor any of the exemptions
permissible in accordance with sub -section (1), a
public authority may allow access to information, if
public interest in disclosure outweighs the harm to the
protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i) of
sub-section (1), any information relating to any
occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section: Provided that where any question arises as to
the date from which the said period of twenty years
has to be computed, the decision of the Centra l
Government shall be final, subject to the usual
appeals provided for in this Act.”
53.The information sought for by the respondents from the
petitioner-Bank have been denied mainly on the ground that
such information is exempted from disclosure under Section
8(1)(a)(d) and (e) of the RTI Act.
54.Learned counsel appearing for the petitioner-Bank
mainly relied upon Section 8(1)(e) of the RTI Act taking the
49
Page 50 stand that the Reserve Bank of India having fiduciary
relationship with the other banks and that there is no reason
to disclose such information as no larger public interest
warrants such disclosure. The primary question therefore, is,
whether the Reserve Bank of India has rightly refused to
disclose information on the ground of its fiduciary relationship
with the banks.
55.The Advanced Law Lexicon, 3rd Edition, 2005, defines
fiduciary relationship as "a relationship in which one person is
under a duty to act for the benefit of the other on the matters
within the scope of the fiduciary relationship. Fiduciary
relationship usually arise in one of the four situations (1)
when one person places trust in the faithful integrity of
another, who as a result gains superiority or influence over the
first, (2) when one person assumes control and responsibility
over another, (3) when one person has a duty to act or give
advice to another on matters falling within the scope of the
relationship, or (4) when there is specific relationship that has
50
Page 51 traditionally be recognized as involving fiduciary duties, as
with a lawyer and a client, or a stockbroker and a customer.”
56. The scope of the fiduciary relationship consists of the
following rules:
“(i)No Conflict rule- A fiduciary must not place
himself in a position where his own interests conflicts
with that of his customer or the beneficiary. There
must be “real sensible possibility of conflict.
(ii)No profit rule- a fiduciary must not profit from
his position at the expense of his customer, the
beneficiary;
(iii)Undivided loyalty rule- a fiduciary owes
undivided loyalty to the beneficiary, not to place
himself in a position where his duty towards one
person conflicts with a duty that he owes to another
customer. A consequence of this duty is that a
fiduciary must make available to a customer all the
information that is relevant to the customer’s affairs
(iv)Duty of confidentiality- a fiduciary must only
use information obtained in confidence and must not
use it for his own advantage, or for the benefit of
another person.”
57.The term fiduciary relationship has been well discussed
by this Court in the case of Central Board of Secondary
Education and Anr. vs. Aditya Bandopadhyay and Ors.
(supra). In the said decision, their Lordships referred various
authorities to ascertain the meaning of the term fiduciary
relationship and observed thus:-
51
Page 52 “20.1) Black’s Law Dictionary (7th Edition, Page 640)
defines ‘fiduciary relationship’ thus:
“A relationship in which one person is under a duty to
act for the benefit of the other on matters within the
scope of the relationship. Fiduciary relationships –
such as trustee-beneficiary, guardian-ward, agent-
principal, and attorney-client – require the highest duty
of care. Fiduciary relationships usually arise in one of
four situations : (1) when one person places trust in the
faithful integrity of another, who as a result gains
superiority or influence over the first, (2) when one
person assumes control and responsibility over
another, (3) when one person has a duty to act for or
give advice to another on matters falling within the
scope of the relationship, or (4) when there is a specific
relationship that has traditionally been recognized as
involving fiduciary duties, as with a lawyer and a client
or a stockbroker and a customer.”
20.2) The American Restatements (Trusts and Agency)
define ‘fiduciary’ as one whose intention is to act for
the benefit of another as to matters relevant to the
relation between them. The Corpus Juris Secundum
(Vol. 36A page 381) attempts to define fiduciary thus :
“A general definition of the word which is sufficiently
comprehensive to embrace all cases cannot well be
given. The term is derived from the civil, or Roman, law.
It connotes the idea of trust or confidence,
contemplates good faith, rather than legal obligation, as
the basis of the transaction, refers to the integrity, the
fidelity, of the party trusted, rather than his credit or
ability, and has been held to apply to all persons who
occupy a position of peculiar confidence toward others,
and to include those informal relations which exist
whenever one party trusts and relies on another, as
well as technical fiduciary relations.
The word ‘fiduciary,’ as a noun, means one who holds a
thing in trust for another, a trustee, a person holding
the character of a trustee, or a character analogous to
that of a trustee, with respect to the trust and
confidence involved in it and the scrupulous good faith
and candor which it requires; a person having the duty,
created by his undertaking, to act primarily for
52
Page 53 another’s benefit in matters connected with such
undertaking. Also more specifically, in a statute, a
guardian, trustee, executor, administrator, receiver,
conservator, or any person acting in any fiduciary
capacity for any person, trust, or estate. Some
examples of what, in particular connections, the term
has been held to include and not to include are set out
in the note.”
20.3) Words and Phrases, Permanent Edition (Vol. 16A,
Page 41) defines ‘fiducial relation’ thus :
“There is a technical distinction between a ‘fiducial
relation’ which is more correctly applicable to legal
relationships between parties, such as guardian and
ward, administrator and heirs, and other similar
relationships, and ‘confidential relation’ which includes
the legal relationships, and also every other
relationship wherein confidence is rightly reposed and
is exercised.
Generally, the term ‘fiduciary’ applies to any person
who occupies a position of peculiar confidence towards
another. It refers to integrity and fidelity. It
contemplates fair dealing and good faith, rather than
legal obligation, as the basis of the transaction. The
term includes those informal relations which exist
whenever one party trusts and relies upon another, as
well as technical fiduciary relations.”
20.4) In Bristol and West Building Society vs. Mothew
[1998 Ch. 1] the term fiduciary was defined thus :
“A fiduciary is someone who has undertaken to act for
and on behalf of another in a particular matter in
circumstances which give rise to a relationship of trust
and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty….. A fiduciary must
act in good faith; he must not make a profit out of his
trust; he must not place himself in a position where his
duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without
the informed consent of his principal.”
53
Page 54 20.5) In Wolf vs. Superior Court [2003 (107) California
Appeals, 4th 25] the California Court of Appeals defined
fiduciary relationship as under :
“any relationship existing between the parties to the
transaction where one of the parties is duty bound to
act with utmost good faith for the benefit of the other
party. Such a relationship ordinarily arises where
confidence is reposed by one person in the integrity of
another, and in such a relation the party in whom the
confidence is reposed, if he voluntarily accepts or
assumes to accept the confidence, can take no
advantage from his acts relating to the interests of the
other party without the latter’s knowledge and
consent.”
21. The term ‘fiduciary’ refers to a person having a duty
to act for the benefit of another, showing good faith and
condour, where such other person reposes trust and
special confidence in the person owing or discharging
the duty. The term ‘fiduciary relationship’ is used to
describe a situation or transaction where one person
(beneficiary) places complete confidence in another
person (fiduciary) in regard to his affairs, business or
transaction/s. The term also refers to a person who
holds a thing in trust for another (beneficiary). The
fiduciary is expected to act in confidence and for the
benefit and advantage of the beneficiary, and use good
faith and fairness in dealing with the beneficiary or the
things belonging to the beneficiary. If the beneficiary
has entrusted anything to the fiduciary, to hold the
thing in trust or to execute certain acts in regard to or
with reference to the entrusted thing, the fiduciary has
to act in confidence and expected not to disclose the
thing or information to any third party. There are also
certain relationships where both the parties have to act
in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-à-vis
another partner and an employer vis-à-vis employee.
An employee who comes into possession of business or
trade secrets or confidential information relating to the
employer in the course of his employment, is expected
to act as a fiduciary and cannot disclose it to others.
Similarly, if on the request of the employer or official
superior or the head of a department, an employee
54
Page 55 furnishes his personal details and information, to be
retained in confidence, the employer, the official
superior or departmental head is expected to hold such
personal information in confidence as a fiduciary, to be
made use of or disclosed only if the employee’s conduct
or acts are found to be prejudicial to the employer.”
58.In the instant case, the RBI does not place itself in a
fiduciary relationship with the Financial institutions (though,
in word it puts itself to be in that position) because, the
reports of the inspections, statements of the bank, information
related to the business obtained by the RBI are not under the
pretext of confidence or trust. In this case neither the RBI nor
the Banks act in the interest of each other. By attaching an
additional “fiduciary” label to the statutory duty, the
Regulatory authorities have intentionally or unintentionally
created an in terrorem effect.
59.RBI is a statutory body set up by the RBI Act as India’s
Central Bank. It is a statutory regulatory authority to oversee
the functioning of the banks and the country’s banking sector.
Under Section 35A of the Banking Regulation Act, RBI has
been given powers to issue any direction to the banks in
55
Page 56 public interest, in the interest of banking policy and to secure
proper management of a banking company. It has several
other far-reaching statutory powers.
60.RBI is supposed to uphold public interest and not the
interest of individual banks. RBI is clearly not in any fiduciary
relationship with any bank. RBI has no legal duty to
maximize the benefit of any public sector or private sector
bank, and thus there is no relationship of ‘trust’ between
them. RBI has a statutory duty to uphold the interest of the
public at large, the depositors, the country’s economy and the
banking sector. Thus, RBI ought to act with transparency and
not hide information that might embarrass individual banks.
It is duty bound to comply with the provisions of the RTI Act
and disclose the information sought by the respondents
herein.
61.The baseless and unsubstantiated argument of the RBI
that the disclosure would hurt the economic interest of the
country is totally misconceived. In the impugned order, the
CIC has given several reasons to state why the disclosure of
56
Page 57 the information sought by the respondents would hugely serve
public interest, and non-disclosure would be significantly
detrimental to public interest and not in the economic interest
of India. RBI’s argument that if people, who are sovereign, are
made aware of the irregularities being committed by the banks
then the country’s economic security would be endangered, is
not only absurd but is equally misconceived and baseless.
62. The exemption contained in Section 8(1)(e) applies to
exceptional cases and only with regard to certain pieces of
information, for which disclosure is unwarranted or
undesirable. If information is available with a regulatory
agency not in fiduciary relationship, there is no reason to
withhold the disclosure of the same. However, where
information is required by mandate of law to be provided to an
authority, it cannot be said that such information is being
provided in a fiduciary relationship. As in the instant case,
the Financial institutions have an obligation to provide all the
information to the RBI and such an information shared under
an obligation/ duty cannot be considered to come under the
57
Page 58 purview of being shared in fiduciary relationship. One of the
main characteristic of a Fiduciary relationship is “Trust and
Confidence”. Something that RBI and the Banks lack between
them.
63.In the present case, we have to weigh between the public
interest and fiduciary relationship (which is being shared
between the RBI and the Banks). Since, RTI Act is enacted to
empower the common people, the test to determine limits of
Section 8 of RTI Act is whether giving information to the
general public would be detrimental to the economic interests
of the country? To what extent the public should be allowed to
get information?
64.In the context of above questions, it had long since come
to our attention that the Public Information Officers (PIO)
under the guise of one of the exceptions given under Section 8
of RTI Act, have evaded the general public from getting their
hands on the rightful information that they are entitled to.
58
Page 59 65. And in this case the RBI and the Banks have sidestepped
the General public’s demand to give the requisite information
on the pretext of “Fiduciary relationship” and “Economic
Interest”. This attitude of the RBI will only attract more
suspicion and disbelief in them. RBI as a regulatory authority
should work to make the Banks accountable to their actions.
66.Furthermore, the RTI Act under Section 2(f) clearly
provides that the inspection reports, documents etc. fall under
the purview of “Information” which is obtained by the public
authority (RBI) from a private body. Section 2(f), reads thus:
“information” means any material in any form,
including records, documents, memos, e-mails,
opinions, advices, press releases, circulars,
orders, logbooks, contracts, reports, papers,
samples, models, data material held in any
electronic form and information relating to any
private body which can be accessed by a public
authority under any other law for the time being
in force;
67.From reading of the above section it can be inferred that
the Legislature’s intent was to make available to the general
public such information which had been obtained by the
public authorities from the private body. Had it been the case
59
Page 60 where only information related to public authorities was to be
provided, the Legislature would not have included the word
“private body”. As in this case, the RBI is liable to provide
information regarding inspection report and other documents
to the general public.
68.Even if we were to consider that RBI and the Financial
Institutions shared a “Fiduciary Relationship”, Section 2(f)
would still make the information shared between them to be
accessible by the public. The facts reveal that Banks are trying
to cover up their underhand actions, they are even more liable
to be subjected to public scrutiny.
69.We have surmised that many Financial Institutions have
resorted to such acts which are neither clean nor transparent.
The RBI in association with them has been trying to cover up
their acts from public scrutiny. It is the responsibility of the
RBI to take rigid action against those Banks which have been
practicing disreputable business practices.
60
Page 61 70.From the past we have also come across financial
institutions which have tried to defraud the public. These acts
are neither in the best interests of the Country nor in the
interests of citizens. To our surprise, the RBI as a Watch Dog
should have been more dedicated towards disclosing
information to the general public under the Right to
Information Act.
71.We also understand that the RBI cannot be put in a fix,
by making it accountable to every action taken by it. However,
in the instant case the RBI is accountable and as such it has
to provide information to the information seekers under
Section 10(1) of the RTI Act, which reads as under:
“Section 10(1) Severability —Where a request
for access to information is rejected on the
ground that it is in relation to information which
is exempt from disclosure, then,
notwithstanding anything contained in this Act,
access may be provided to that part of the record
which does not contain any information which is
exempt from disclosure under this Act and
which can reasonably be severed from any part
that contains exempt information.”
72.It was also contended by learned senior counsel for the
RBI that disclosure of information sought for will also go
61
Page 62 against the economic interest of the nation. The submission
is wholly misconceived.
73.Economic interest of a nation in most common parlance
are the goals which a nation wants to attain to fulfil its
national objectives. It is the part of our national interest,
meaning thereby national interest can’t be seen with the
spectacles(glasses) devoid of economic interest.
74.It includes in its ambit a wide range of economic
transactions or economic activities necessary and beneficial to
attain the goals of a nation, which definitely includes as an
objective economic empowerment of its citizens. It has been
recognized and understood without any doubt now that one of
the tool to attain this goal is to make information available to
people. Because an informed citizen has the capacity to
reasoned action and also to evaluate the actions of the
legislature and executives, which is very important in a
participative democracy and this will serve the nation’s
interest better which as stated above also includes its
62
Page 63 economic interests. Recognizing the significance of this tool it
has not only been made one of the fundamental rights under
Article 19 of the Constitution but also a Central Act has been
brought into effect on 12
th
October 2005 as the Right to
Information Act, 2005.
75.The ideal of ‘Government by the people’ makes it
necessary that people have access to information on matters of
public concern. The free flow of information about affairs of
Government paves way for debate in public policy and fosters
accountability in Government. It creates a condition for ‘open
governance’ which is a foundation of democracy.
76.But neither the Fundamental Rights nor the Right to
Information have been provided in absolute terms. The
fundamental rights guaranteed under Article 19 Clause 1(a)
are restricted under Article 19 clause 2 on the grounds of
national and societal interest. Similarly Section 8, clause 1 of
Right to Information Act, 2005, contains the exemption
provisions where right to information can be denied to public
in the name of national security and sovereignty, national
63
Page 64 economic interests, relations with foreign states etc. Thus, not
all the information that the Government generates will or shall
be given out to the public. It is true that gone are the days of
closed doors policy making and they are not acceptable also
but it is equally true that there are some information which if
published or released publicly, they might actually cause more
harm than good to our national interest… if not domestically it
can make the national interests vulnerable internationally and
it is more so possible with the dividing line between national
and international boundaries getting blurred in this age of
rapid advancement of science and technology and global
economy. It has to be understood that rights can be enjoyed
without any inhibition only when they are nurtured within
protective boundaries. Any excessive use of these rights which
may lead to tampering these boundaries will not further the
national interest. And when it comes to national economic
interest, disclosure of information about currency or exchange
rates, interest rates, taxes, the regulation or supervision of
banking, insurance and other financial institutions, proposals
64
Page 65 for expenditure or borrowing and foreign investment could in
some cases harm the national economy, particularly if
released prematurely. However, lower level economic and
financial information, like contracts and departmental budgets
should not be withheld under this exemption. This makes it
necessary to think when or at what stage an information is to
be provided i.e., the appropriate time of providing the
information which will depend on nature of information sought
for and the consequences it will lead to after coming in public
domain.
77.In one of the case, the respondent S.S. Vohra sought
certain information in relation to the Patna Branch of ICICI
Bank and advisory issued to the Hong Kong Branch of ICICI
Bank. The contention of the respondent was that the Finance
Minister had made a written statement on the floor of the
House on 24.07.2009 that some banks like SBI, ICICI, Bank of
Baroda, Dena Bank etc., were violating FEMA Guidelines for
opening of accounts and categorically mentioned that the
Patna Branch of ICICI Bank Ltd. had opened some fictitious
65
Page 66 accounts which were opened by fraudsters and hence an
advisory note was issued to the concerned branch on
December 2007 for its irregularities. The Finance Minister
even mentioned that in the year 2008 the ICICI Bank Ltd. was
also warned for alleged irregular dealings in securities in Hong
Kong. Hence, the respondent sought such advisory note as
issued by the RBI to ICICI Bank. The Central Information
Commissioner in the impugned order considered the RBI
Master Circular dated 01.07.2009 to all the commercial banks
giving various directions and finally held as under :-
“It has been contended by the Counsel on behalf of
the ICICI Bank Limited that an advisory note is prepared
after reliance on documents such as Inspection Reports,
Scrutiny reports etc. and hence, will contain the contents of
those documents too which are otherwise exempt from
disclosure. We have already expressed our view in express
terms that whether or not an Advisory Note shall be
disclosed under the RTI Act will have to be determined on
case by case basis. In some other case, for example, there
may be a situation where some contents of the Advisory
Note may have to be severed to such an extent that details
of Inspection Reports etc. can be separated from the Note
and then be provided to the RTI Applicant. Section 10 of
the RTI Act leaves it open to decide each case on its merits
after having satisfied ourselves whether an Advisory Note
needs to be provided as it is or whether some of its contents
may be severed since they may be exempted per se under
the RTI Act. However, we find no reason, whatsoever, to
apply Section 10 of the RTI Act in order to severe the
contents of the Advisory Note issued by the RBI to the ICICI
Bank Limited as the matter has already been placed on the
floor of the Lok Sabha by the Hon’ble Finance Minister.
66
Page 67 This is a matter of concern since it involves the
violation of policy Guidelines initiated by the RBI and
affects the public at large. Transparency cannot be brought
overnight in any system and one can hope to witness
accountability in a system only when its end users are well-
educated, well-informed and well-aware. If the customers
of commercial banks will remain oblivious to the violations
of RBI Guidelines and standards which such banks
regularly commit, then eventually the whole financial
system of the country would be at a monumental loss. This
can only be prevented by suo motu disclosure of such
information as the penalty orders are already in public
domain.”
78.Similarly, in another case the respondent Jayantilal N.
Mistry sought information from the CPIO, RBI in respect of a
Cooperative Bank viz. Saraspur Nagrik Sahkari Bank Limited
related to inspection report, which was denied by the CPIO on
the ground that the information contained therein were
received by RBI in a fiduciary capacity and are exempt under
Section 8(1)(e) of RTI Act. The CIC directed the petitioner to
furnish that information since the RBI expressed their
willingness to disclose a summary of substantive part of the
inspection report to the respondent. While disposing of the
appeal the CIC observed:-
“Before parting with this appeal, we would like to
record our observations that in a rapidly unfolding
economics scenario, there are public institutions, both
in the banking and non-banking sector, whose
activities have not served public interest. On the
67
Page 68 contrary, some such institutions may have attempted
to defraud the public of their moneys kept with such
institutions in trust. RBI being the Central Bank is
one of the instrumentalities available to the public
which as a regulator can inspect such institutions and
initiate remedial measures where necessary. It is
important that the general public, particularly, the
share holders and the depositors of such institutions
are kept aware of RBI’s appraisal of the functioning of
such institutions and taken into confidence about the
remedial actions initiated in specific cases. This will
serve the public interest. The RBI would therefore be
well advised to be proactive in disclosing information
to the public in general and the information seekers
under the RTI Act, in particular. The provisions of
Section 10(1) of the RTI Act can therefore be
judiciously used when necessary to adhere to this
objective.”
79.In another case, where the respondent P.P. Kapoor
sought information inter alia about the details of default in
loans taken from public sector banks by industrialists, out of
the list of defaulters, top 100 defaulters, names of the
businessmen, firm name, principal amount, interest amount,
date of default and date of availing the loan etc. The said
information was denied by the CPIO mainly on the basis that
it was held in fiduciary capacity and was exempt from
disclosure of such information. Allowing the appeal, the CIC
directed for the disclosure of such information. The CIC in the
impugned order has rightly observed as under:-
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Page 69 “I wish government and its instrumentalities
would remember that all information held by
them is owned by citizens, who are sovereign.
Further, it is often seen that banks and financial
institutions continue to provide loans to
industrialists despite their default in repayment
of an earlier loan.” This Court in UP Financial
Corporation vs. Gem Cap India Pvt. Ltd ., AIR
1993 SC 1435 has noted that :
“Promoting industrialization at the cost of
public funds does not serve the public
interest, it merely amounts to transferring
public money to private account’. Such
practices have led citizens to believe that
defaulters can get away and play fraud on
public funds. There is no doubt that
information regarding top industrialists
who have defaulted in repayment of loans
must be brought to citizens’ knowledge;
there is certainly a larger public interest
that could be served on ….disclosure of
the same. In fact, information about
industrialists who are loan defaulters of
the country may put pressure on such
persons to pay their dues. This would
have the impact of alerting Citizens about
those who are defaulting in payments and
could also have some impact in shaming
them.
RBI had by its Circular DBOD No.
BC/CIS/47/20.16.002/94 dated April 23, 1994
directed all banks to send a report on their
defaulters, which it would share with all banks
and financial institutions, with the following
objectives:
1)To alert banks and financial institutions (FIs)
and to put them on guard against borrowers
who have defaulted in their dues to lending
institutions;
2)To make public the names of the borrowers
who have defaulted and against whom suits
have been filed by banks/ FIs.”
69
Page 70 80.At this juncture, we may refer the decision of this Court
in Mardia Chemicals Limited vs. Union of India , (2004) 4
SCC 311, wherein this court while considering the validity of
SARFAESI Act and recovery of non-performing assets by
banks and financial institutions in India, held :-
“………….it may be observed that though the
transaction may have a character of a private
contract yet the question of great importance behind
such transactions as a whole having far reaching
effect on the economy of the country cannot be
ignored, purely restricting it to individual
transactions more particularly when financing is
through banks and financial institutions utilizing the
money of the people in general namely, the
depositors in the banks and public money at the
disposal of the financial institutions. Therefore,
wherever public interest to such a large extent is
involved and it may become necessary to achieve an
object which serves the public purposes, individual
rights may have to give way. Public interest has
always been considered to be above the private
interest. Interest of an individual may, to some
extent, be affected but it cannot have the potential of
taking over the public interest having an impact in
the socio- economic drive of the country………..”
81.In rest of the cases the CIC has considered elaborately
the information sought for and passed orders which in our
opinion do not suffer from any error of law, irrationality or
arbitrariness.
70
Page 71 82.We have, therefore, given our anxious consideration to
the matter and came to the conclusion that the Central
Information Commissioner has passed the impugned orders
giving valid reasons and the said orders, therefore, need no
interference by this Court.
83.There is no merit in all these cases and hence they are
dismissed.
…………………………… .J.
(M.Y. Eqbal)
…………………………… .J.
(C. Nagappan )
New Delhi
December 16, 2015
71
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