RESERVE BANK OF INDIA vs. JAYANTILAL N. MISTRY

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

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) JUDGMENT 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 1 TRANSFERRED CASE (CIVIL) NO. 95 OF 2015 (Arising out of Transfer Petition (Civil) No. 713 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) JUDGMENT 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 2 TRANSFERRED CASE (CIVIL) NO. 100 OF 2015 (Arising out of Transfer Petition (Civil) No. 709 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 JUDGMENT 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 3 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

The facts in brief of the Transfer Case No.91 of 2015 are that during May-June, 2010 the statutory inspection of Makarpura

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the appeal of the respondent agreeing with the reply given by JUDGMENT 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 5 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

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because of non-submission of required documents, the JUDGMENT 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 8 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

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 JUDGMENT 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 9

7. The First Appellate Authority concurred with the CPIO JUDGMENT 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 10 issue and the High Court stayed the operation of the order of the CIC.

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petitioner to provide information as per the records to the JUDGMENT 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 12 10. In Transfer Case No.95 of 2015, following information was sought and reply to it is tabulated hereunder:

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11. In the Second Appeal, the CIC heard the respondent via telephone and the petitioner through video conferencing. As 14 Page 14 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

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the order of the CIC in so far queries 2, 9 and 10 are JUDGMENT 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 16 Agriculture and Rural Development under the Act of 2005, reply to which is tabulated hereunder:-

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 17

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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 21

capacity and cannot be disclosed to outsiders. The CPIO, UBD JUDGMENT 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 22 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

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24 Page 24 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

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. JUDGMENT 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 25 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

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. JUDGMENT 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 26 the information obtained by it, in a consolidated form but not otherwise.

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 JUDGMENT 27 Page 27 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.

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 JUDGMENT 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 28 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.

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 JUDGMENT 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 29 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

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 JUDGMENT 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 30 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

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. JUDGMENT 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 31 Information Act, 2005 cannot override credit information sought by any person in contradiction to the statutory provisions for confidentiality.

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 JUDGMENT 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 32 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

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 JUDGMENT 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 33

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. JUDGMENT 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 34 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

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 JUDGMENT 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 35 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

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 JUDGMENT 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 36

41. In the case of the Union of India vs. Association for Democratic Reforms , AIR 2002 SC 2112, while declaring that JUDGMENT 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 37 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,

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 JUDGMENT 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 38 hold Governments and their instrumentalities accountable to the governed.” 43. The submission of the RBI that exceptions be carved out

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 JUDGMENT 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 39 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

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. JUDGMENT 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 40 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

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.” JUDGMENT 41 Page 41 47. We have extensively heard all the counsels appearing for the petitioner Banks and respondents and examined the law and the facts.

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 JUDGMENT 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 42 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

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 JUDGMENT 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 43 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.

JUDGMENT 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 44 Government to intervene extensively in economic and social affairs. Therefore, the efficiency and effectiveness of the government processes are critical variables, which will

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 JUDGMENT 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 45 WHEREAS the Constitution of India has established democratic Republic;

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- JUDGMENT (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 46 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

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 JUDGMENT 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 47

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JUDGMENT 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 49 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

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 JUDGMENT 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 50 traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer.”

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.” JUDGMENT 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 51 “20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary relationship’ thus:

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. JUDGMENT 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 52

“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 : JUDGMENT “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 53 20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the California Court of Appeals defined fiduciary relationship as under :

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 JUDGMENT 54 Page 54 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.”

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. JUDGMENT 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 55 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.

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 JUDGMENT 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 56 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

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 JUDGMENT 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 57 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 JUDGMENT 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 58 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

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; JUDGMENT 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 59 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

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. JUDGMENT 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 60 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

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.” JUDGMENT 72. It was also contended by learned senior counsel for the RBI that disclosure of information sought for will also go 61 Page 61 against the economic interest of the nation. The submission is wholly misconceived. 73. Economic interest of a nation in most common parlance

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 JUDGMENT 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 62 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

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 JUDGMENT 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 63 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

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 JUDGMENT 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 64 for expenditure or borrowing and foreign investment could in some cases harm the national economy, particularly if released prematurely. However, lower level economic and

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 JUDGMENT 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 65 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

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. JUDGMENT 66 Page 66

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 JUDGMENT 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 67

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, JUDGMENT 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:- 68 Page 68

“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. JUDGMENT 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 69 80. At this juncture, we may refer the decision of this Court in Mardia Chemicals Limited vs. Union of India , (2004) 4

banks and financial institutions in India, held :-

the information sought for and passed orders which in our opinion do not suffer from any error of law, irrationality or arbitrariness. 70 Page 70

the matter and came to the conclusion that the Central Information Commissioner has passed the impugned orders

JUDGMENT 71 Page 71