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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Reserve Bank of India Vs. Jaynatilal N. Mistry & Ors. (2016) 3 SCC 525

ashakantasharma

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

By Shailesh Gandhi,

Former Central Information Commissioner
 

Judgment : Reserve Bank of India Vs. Jaynatilal N. Mistry & Ors. (2016) 3 SCC 525


This is a landmark judgement given by Apex Court on 16 December,
2015 and it must be included since it is the first clear pro-transparency
judgement after the advent of the RTI Act.

A bench of Justice M.Y. Eqbal and C. Nagappan delivered the most
significant judgment on the law and laid down standards of transparency
in line with the letter and spirit of the RTI Act. The apex court was
hearing a batch of transferred petitions filed by various financial
institutions and Banks against eleven decisions2 of the Central
Information Commission. Since the issues were similar the eleven cases
were transferred from the Bombay and Delhi High Courts to the
Supreme Court. Eight had been filed by RBI, two by NABARD and one
was filed by ICICI Bank.

As per the RTI Act denial of information is permitted only if it falls in
the ambit of Section 8 of the Act, or providing the information infringes
copyright. A few organizations which are security and intelligence
agencies specifically mentioned in the second schedule to the Act are
completely exempted, unless the information sought relates to
corruption or human rights violations. The Act is complete by itself and
to obviate the possibility of any laws circumscribing this fundamental
right of citizens, Section 22 states: “The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith contained in
the Official Secrets Act, 1923, and any other law for the time being in
force or in any instrument having effect by virtue of any law other than
this Act.” Insertion of a non- obstante clause in Section 22 of the RTI
Act was a conscious choice of the Parliament to safeguard the citizens’
fundamental right to information from convoluted interpretations of
other laws adopted by public authorities to deny information. The
presence of Section 22 of the RTI Act simplifies the process of
implementing the right to information both for citizens as well as the
PIO; citizens may seek to enforce their fundamental right to information
by simply invoking the provisions of the RTI Act.

To understand this, two scenarios may be envisaged:

1. The existence of an earlier law/ rule whose provisions pertain to
furnishing of information and is consistent with the RTI Act:
Since there is no inconsistency between the law/ rule and the
provisions of the RTI Act, the citizen is at liberty to choose whether
she will seek information in accordance with the said law/ rule or
under the RTI Act. If the PIO has received a request for information
under the RTI Act, the information shall be provided to the citizen as
per the provisions of the RTI Act and any denial of the same must be
in accordance with Sections 8 and 9 of the RTI Act only; and

2. An earlier law/ rule whose provisions pertain to furnishing of
information but is inconsistent with the RTI Act: Where there is
inconsistency between the law/rule and the RTI Act in terms of
access to information, then Section 22 of the RTI Act lays down that
it shall override the said law/ rule and the PIO would be required to
furnish the information as per the RTI Act only.

The Supreme Court has reinforced the correct position of the law.
Section 8 of the RTI Act, which details information which can be
denied states:

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;
(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;
information including commercial confidence, trade

(d) 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;
information, (g) of which would

the disclosure

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;
(i) information which relates to personal information
the disclosure of which has no relationship to any
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 nor
any of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information,
if public interests in disclosure outweigh the harm to the
protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i) of subsection (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 Central Government shall be
final, subject to the usual appeals provided for in this Act.

The main points of information which were being denied in the matters
before the court were:
1. Investigations and audit reports of banks by RBI
2. Warning or Advisory issued to Bank.
3. Minutes of meetings of governing board and directors
4. Details of Top defaulters.
5. Grading of banks

In the instant case one of the grounds for denial was that information
could not be disclosed as per the Banking Regulations Act. The other
grounds on which refusal of information was justified was on the basis
of Section 8(1) and the fact that the impugned judgments issued by a
single member bench of the commission had disagreed with an earlier
full bench decision taken by a four member bench. The single member
bench had held the earlier decision per incuriam. It was argued by RBI
that the single member bench was bound to follow the earlier decision of
the full bench.

RBI had claimed exemption under Section 8(1)(a), (d) and (e) of the
RTI Act and also argued that there was no larger public interest in
disclosure and hence did not fulfil the requirement of Section 8(2). It
had claimed that the economic interests of the state would be adversely
affected by disclosure. It was also stated that the commercial interests of
the banks would be affected. The most insistent claim for exemption
was that the information was held by RBI and NABARD in a fiduciary
relationship.

The Apex court did not accept any of these grounds. It held in para 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.” There have been
many instances of PIOs,- including those of High Courts,- insisting that
they will give information only on the basis of their regulations or
earlier laws. This has now been settled the Supreme Court.

The Supreme Court has recorded the contention of RBI that the single
member bench could not have given a ruling contrary to that of a four
member full bench of the commission. It has however upheld the
decision of the single member bench since the commissioner had given
logical reasons to show how the full bench decision was per incuriam.
This opens the way for information commissioners to interpret the law
as per its letter and intent, instead of being tied down by earlier
decisions given in ignorance of the law, provided a proper reasoning is
given.

On RBIs contention that disclosure would harm the nation’s economic
interest the court upheld the commission’s ruling and echoed in para
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 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.”

A claim is often made that information given to regulators and statutory
authorities in discharge of statutory obligations is held in a fiduciary
relationship and hence is exempt as per Section 8 (1)(e) of the Act. The
information commission had rejected this claim on the ground that
information provided in discharge of statutory requirements cannot be
considered as being held in a fiduciary relationship. The Supreme Court
has reinforced this by stating in paragraph 62: “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 information shared
under an obligation/ duty cannot be considered to come under the
purview of being shared in fiduciary relationship.”

The Court has taken note of the obstructionist and secrecy wedded
PIOs response to RTI applications. It has expressed its strong
disapproval of denying the citizen’s fundamental right in paragraph
64: “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”. This should serve as a warning and wake up call to all PIOs, First
appellate authorities and information commissioners. If information
commissioners penalize PIOs who are using every innovative pretext
to deny information, it would reduce the unhealthy practices being
adopted to deny information.

This is a landmark judgment and all those responsible for implementing
the RTI Act must imbibe the letter and spirit of this. A very heartening
impact of this judgment was seen within a fortnight when Mr.
Raghuram Rajan the then RBI Governor in his New Year message to
bank officers for the year 2016 said: “It has often been said that India
is a weak state. Not only are we accused of not having the
administrative capacity of ferreting out wrong doing, we do not punish
the wrong-doer – unless he is small and weak. This belief feeds on
itself. No one wants to go after the rich and well-connected wrongdoer, which means they get away with even more. If we are to have
strong sustainable growth, this culture of impunity should stop.
Importantly, this does not mean being against riches or business, as
some would like to portray, but being against wrong-doing. …... there
is a sense that we do not enforce compliance. Are we allowing
regulated entities to get away year after year with poor practices even
though these are noted during inspections/scrutinies? Should we
become more intolerant of sloppy practices at regulated entities, so
that these do not result in massive scams years later? Should we haul
up accountants who do not flag issues they should detect? My sense is
that we need a continuing conversation about tightening both detection
as well as penalties for non-compliance throughout the hierarchy…..
Finally, we are embedded in a changing community. What was OK in
the past is no longer all right when the public demands transparency
and better governance from public organisations. …. Transparency
and good governance are ways to protect ourselves from roving
enquiries – everyone should recognise that an effective regulator has
enemies, and like Caesar’s wife, should be above all suspicion.”
However within three months RBI started playing a different tune and
again refusing information which latter RTI applications sought on the
same matter.

The Supreme Court has given a clear unambiguous judgment on the
RTI Act specifically with respect to Section 8 (1) (a), (e) and section 22
of the Act. It has castigated those who deny information by using
Section 8 (1) without justification. The then Governor of RBI has also
responded positively and the writer has confirmation that information
has been provided as per the CIC orders. We should build on this to
bring transparent and accountable governance for our nation. RBI is no
longer willing to abide by the judgment and a contempt petition has
been filed against it. It is unfortunate that RBI is taking an arrogant
position on transparency and has now come up with a Non-Disclosure
policy which they are labeling as a ‘Disclosure Policy’.

 

About the Authors:
Shailesh Gandhi is a first generation entrepreneur and a Distinguished Alumnus awardee of IIT Bombay. He sold his company to become an RTI activist. Shailesh was part of the National RTI movement which was involved in drafting the National RTI Act. He was convener of the National Campaign for People’s Right To Information. He used RTI and also trained many citizens and government officials in over 1000 workshops to use it. He is perhaps the only RTI activist to have been chosen as a Central Information Commissioner. He disposed a record of over 20,000 cases in his tenure of 3 years and 9 months, and ensured that most cases were decided in less than 90 days. He gave many landmark decisions on RTI, apart from organizing the first digital paperless office in the Commission. He is now at his home in Mumbai to further and deepen RTI to empower citizens to take effective participatory charge of their democracy. He is also passionately pursuing the cause of evolving ways for a time bound justice delivery system, and improving governance systems. Amongst many awards, he has been awarded the Nani Palkhiwala Civil Liberties award, and the MR Pai award.

Sandeep Jalan is an Advocate, practicing in Bombay High Court and also in Subordinate Courts and Tribunals. He writes extensively on various legal issues. He has developed a website / Legal Referencer vakeelkanumber.com wherein the pressing issues of our society have been identified, with all probable legal remedies which may be pursued, are suggested therein, and followed by articulate legal drafts and procedure.

He also write Blogs.
http://commonlaw-sandeep.blogspot.in/
http://thepracticeoflawjalan.blogspot.in/
http://judgmentshighcourtsapexcourt.blogspot.in/
http://legaldraftsjalan.blogspot.in/

http://www.rti.india.gov.in/cic_decisions/CIC_SM_A_2011_001487_SG_15434_M_69675.pdf

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

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