RBI Continues to Defy Supreme Court’s RTI Ruling on Sharing Inspection Reports of Banks
Continuing with its tradition to disregard the Right to Information (RTI) Act, the Reserve Bank of India’s (RBI) once again failed to uphold the provisions of the Act and has failed to follow Supreme Court decision on providing information on bank inspection reports.  
 
In a recent RTI request filed by retired central information commissioner (CIC) Shailesh Gandhi, the delaying tactics of the central bank while responding are quite evident. 
 
Mr Gandhi had filed an RTI seeking information about Saraswat Co-operative Bank. He was seeking information on documents such as; 
 
1.  Copies of RBI’s Audit reports and inspection reports.
2.  Copies of any warnings or advisories issued to the bank 
3.  Details of any fines or penalties levied on the bank.
4.  The grade allotted to the bank.
5.  Total amount of Non-Performing Assets.
6.  Report on quality of borrowers.
7.  List of top five Defaulters with the amounts of default
 
This RTI application was filed by Mr Gandhi on 25th October and was sent by speed-post which as per the tracking was delivered to the RBI four days later on 29 October 2019. 
 
 
However, in its reply, the central public information officer (CPIO) of RBI stated that he received the RTI application on the 6 November 2019 and not before that, against the delivery date of 29th October.  
 
 
What the CPIO of RBI did was to send a letter to Saraswat Bank seeking its consent before sharing any information.  In the letter, RBI says, “Since the information sought by the application related to your bank, a notice is therefore, given under section 11(1) read with section 11(2) of the act to enable you to make a written submission within 10 days from the date of receipt of this notice, as to whether the documents sought by the applicant may be disclosed or not along with the reasons for the same indicating clearly for each of the documents.” 
 
While it might seem like the RBI is right in asking Saraswat Bank before revealing the information since it pertains to a ‘third party’, they are however not following the provisions of the RTI Act. Before furnishing the information, the PIO must analyse whether it is exempt or not and then must proceed with the RTI application.
 
While section 11 is not a rejection, it is however incorrect in this case. Section 11 of the Act works under the presumption that the information, which RBI holds regarding Saraswat Bank is held under fiduciary capacity and is a third party information hence the RBI has to seek the permission of the third party involved before disclosing the information
 
Fiduciary in legal parlance means, “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.”
 
As per a Supreme Court (SC) ruling in the “Reserve Bank Of India vs Jayantilal N. Mistry”  the apex court observed, “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.”
 
The court further observed, “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.”
 
In their judgement, the SC conclusively stated that, “As in this case, the RBI is liable to provide information regarding inspection report and other documents to the general public.” 
 
The SC categorically has defined and has cleared that RBI does not hold information of banks in fiduciary capacity and neither is the inspection report obtained from private entities 3rd party information. As per the RTI act as well, the RBI is legally bound to declare the inspection reports which are ideally supposed to be declared suo-moto on their website. The RBI however does not declare them on their own and neither do they reveal inspection reports when asked under RTI. 
 
As per the RTI Act, information can only be exempted on the basis of provisions which are mentioned under section 8 and section 9. 
 
In the past as well, the RBI has refused to give inspection reports under the RTI act. Girish Mittal, an RTI activist had been filing requests with the RBI seeking inspection reports of various banks, which they had stone-walled until the SC weighed in. 
 
While in this case, the RBI has not refused the information directly, they have however failed to follow various SC rulings and also failed to follow the provisions of the act itself. 
 
"It is obvious that the RBI is not being honest about receipt and dispatch of RTI responses. It is unfortunate that it does not recognise the efforts of the Supreme Court in matters clearly decided by it. If the RBI were to keep all the information on their website for all banks, instances like PMC would not occur," Mr Gandhi, the former central information commissioner, concluded. 
 
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    COMMENTS

    Shravan Shah

    1 month ago

    What eventually happened to this?

    Dr Benoy Kumar Chattapadhyaya

    2 months ago

    RBI Official has Frauded me Rs.1,34,700 for transferred of my Fund which is under Custody of RBI months of 26th July 2019 through [email protected]. I am giving both Official names Mr. Sameer Singh Head Customer Consumer Forum and Mr. Dinesh Shah RBI New Delhi. They have not send my Fund nor Refund my money what ever I have send to RBI. Matter has been reported to Governor RBI, cepcbelapur, cepcnewdelhi and Cyber Crime Pune with all the proofs of documents but no body has taken any actions as well as no reply has given to me. RBI how Frauded the innocent people.

    Nakul Kumar Reddy

    2 months ago

    File case against them.

    All Private Organisations Come under RTI: Analysis of the SC Order Bringing CJI under the RTI Act
    While the office of the Chief Justice of India is now a public authority under the Right to Information (RTI) Act, thanks to a historic Supreme Court (SC) order last week, the 108-page judgement also throws up some interesting analysis of this law, particularly by way of clearing up any misconception or interpretation that private organisations selectively come under RTI. 
     
    In no uncertain term, the five-member constitution bench of the SC clarified that `information’ not presently available or held by the public authority but which can be accessed by the public authority from a private body under any other law for the time being in force’ is also public information. Thus, all private Organisations come within the ambit of the RTI Act. This is indeed great news for citizens whose RTI requisition to private organisations is often stonewalled by public information officers (PIOs) and appellate authority (AA) under the pretext that they are not `substantially funded.’ Even information commissioners sometimes favour the private organisations.
     
    The judges also referred to Section 2 (j) which states:  (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, stressing on the word `control.’
     
    The order scripts thus:
     
    • “…the words ‘under the control of any public authority’ as per their natural meaning would mean the right and power of the public authority to get access to the information. It refers to dominion over the information or the right to any material, document etc. The words ‘under the control of any public authority’ would include within their ambit and authority’ information relating to a private body which can be accessed by a public authority under any other law for the time being in force, subject to the pre-imposed conditions and restrictions as applicable to access the information.’’

     

    • “Section 2(f) read with Section 22 of the RTI Act does not bring any modification or amendment in any other enactment, which bars or prohibits or imposes pre-condition for accessing information of the private organisations. Rather, clause (f) to Section 2 upholds and accepts the said position when it uses the expression – 'which can be accessed,' that is the public authority should be in a position and be entitled to ask for the said information.’’

     

    • “In Khanapuram Gandaiah vs Administrative Officer and Others 14, this Court on examining the definition in clause 2(f) of the RTI Act had held as under:.. “that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. ...’’
     
    Venkatesh Nayak, who has penned his analysis of this SC order says, “the Constitution Bench’s conjunctive interpretation of the term ‘information’ and ‘right to information’ which is ‘under the control’ of a public authority clarifies that it has a duty to collect information about a private hospital, school, shop, hotel, firm or factory, under lawful authority. It should also furnish it to an RTI applicant in accordance with the Act’s provisions even though such information was not held in material form in its records at the time of receiving the request. This provision has not been used to the fullest and wherever attempts were made, PIOs often resisted the performance of such duties. This judgement is a potent tool in the hands of RTI applicants who would like to make private entities that are not directly covered by the Act, more transparent about their activities.’’
     
    “The Department of Personnel and Training (DoPT), which often loses no time in sending out circulars highlighting regressive interpretations of the RTI Act contained in occasional judicial pronouncements would do well to show similar enthusiasm in circulating these portions of the judgement to PIOs, first appellate authorities and Information Commissions. This will go a long way in shedding old practices of denying access to information on such frivolous grounds,’’  Mr Nayak adds.
    Agree!
     
     
    Portions of Section 2 referred to by the Constitution Bench:
     
    16. The terms ‘information’, ‘record’ and ‘right to information’ have been defined under clauses (f), (i) and (j) to Section 2 of the RTI Act, which are reproduced below:
     
    “(f) “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;
     
    (i) "record" includes—
     
    (a) any document, manuscript and file;
     
    (b) any microfilm, microfiche and facsimile copy of a document;
     
    (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and 
     
    (d) any other material produced by a computer or any other device;
     
    (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.
     
    (Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.) 
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    COMMENTS

    Sandeep More

    2 months ago

    Surreal judgement for the judicial activists who perform the self imposed noble task of bringing about the transparency and integrity by checkmating all those Public Authorities who keep on stonewalling at each step of the way. Next, we have to aim for a law to specify a fixed period within which such info sought shd be made available failing which the PIOs and their supervisors should be sacked for incompetancy

    Nakul Kumar Reddy

    2 months ago

    Ready to file rti

    gcmbinty

    2 months ago

    I seek opinion and clarification from RTI experts on the following issues concerning private bodies:
    a) Can an RTI application be filed by the Indian citizens seeking information with regard to project/s funded by the government, or
    (ii) with regard to any matter or the field of operation of the private body;
    b) Can anybody file an RTI application for projects financed from Consumer Welfare Fund is not the Revenue Receipt of the Government at the Centre or at the States/UTs, being personal of consumers only.

    Ramesh Bajaj

    2 months ago

    Does this mean that any Private Limited Company or Cooperative housing society, or Limited Company all come under RTI act.

    GLN Prasad

    2 months ago

    This judgment should not be treated as an isolated one and should be studied with other decisions also. After analyzing all such SC Judgments finally DOPT issued O&M to all authorities stating that PIO is not supposed to collect and collate information because an applicant has solicited, and the information available in material form under their custody should only be provided. When the implementation with public authorities is now most complicated, and many such second appeals are pending with Information Commission from 2 years to 10 years, bringing public entities also into frame of RTI brings lakhs of further second appeals before commission and it may take even 5 years minimum time for IC to hear such cases, and those second appeals against public authorities before IC gets further delayed in the process.

    Nakul Kumar Reddy

    2 months ago

    Rti act, iam one of the activist of this act .

    Ranbir Lamba

    2 months ago

    Land mark judgement
    All private & public comes under RTI

    “Judicial Independence and Accountability Go Hand-in-hand; Office of Chief Justice Falls under RTI Act,” Rules SC
    The argument by the Attorney General of India, KK Venugopal, at the Supreme Court (SC) hearing in September 2019, that the office of Chief Justice of India (CJI) coming under the Right to Information (RTI) Act, “will prove deleterious to the functioning of the judiciary;” was nullified on Wednesday when the Constitution Bench of the apex court gave a historic order. The Supreme Court upheld the Delhi High Court’s judgement of 2010, bringing the CJI’s office under the RTI Act.
     
    The Constitution Bench, which comprised CJI Ranjan Gogoi, Justices Sanjiv Khanna, NV Ramana, Deepak Gupta and DY Chandrachud, stated that transparency and accountability go hand in hand, which does not undermine judicial independence and that, disclosure is a facet of public interest.
     
    The apex court has passed three judgments—one by Chief Justice Gogoi and Justices Khanna and Gupta, and two separate concurring judgements by Justices Ramana and Chandrachud.
     
    The following questions of law as per the Constitution were addressed during the hearing:
     
    * Whether the concept of independence of the judiciary requires and demands the prohibition of permission of the information sought?
     
    * Whether the information sought amounts to interference in the functioning of the judiciary?
     
    * Whether the information sought cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?
     
    * Whether the information sought for is exempt under Section 8 (I j) of the RTI Act?
     
    It may be recalled that in 2010, the Delhi High Court upheld a decision by the Central Information Commission (CIC) that the office of the CJI is public authority under the Right to Information (RTI) Act and therefore judges’ assets should be made public. The SC filed an appeal, but the Delhi HC dismissed it. The central public information officer (CPIO) of the SC and the Secretary General of the SC then filed a petition against the Delhi High Court order in the SC. 
     
     In April 2019, a five judge bench headed by Chief Justice Ranjan Gogoi reserved the order. During that hearing, CJI Gogoi had stated “in the name of transparency, you can’t destroy the institution.”
     
    Through this judgement, the apex court has junked the appeal filed by secretary general of SC challenging the Delhi High Court order in holding office of CJI amenable under the RTI.
     
    It all started when, on 10 November 2007, RTI activist Subhashchandra Agrawal filed a request with the central public information officer (CPIO) of the SC seeking a copy of the resolution dated 7 May 1997 of the SC requiring every judge to declare personal assets, and also provide information on whether any such declaration of assets were filed by judges of the SC to the CJI and whether the High Court judges are submitting declarations about their assets to their respective Chief Justices in their states. 
     
    While the CPIO provided a copy of the 1997 resolution, he denied information relating to judges’ declaration of assets.  He replied that the inforamation is under the control of the registry of the SC and, therefore, it could not be furnished. 
     
    When Mr Agrawal appealed to the first appellate authority (FAA), the latter reprimanded the CPIO and said that he should have transferred the application to the CPIO of the registry, as per the RTI Act. So, the FAA sent back the application to the CPIO for further perusal.
     
    However, the CPIO of registry not only denied information but reprimanded Mr Agrawal in his reply saying, “In the case at hand, you yourself knew that the information sought by you is related to various High Courts in the country and instead of applying to those public authorities you have taken a short circuit procedure by approaching the CPIO, Supreme Court of India remitting the fee of Rs10 payable to one authority and getting it referred to all the public authorities at the expense of one CPIO. In view of this, the relief sought by you cannot be appreciated and is against the spirit of Section 6 (3) of the RTI Act, 2005.”
     
    Mr Agrawal then filed a second appeal at the CIC. During the hearing, the CPIO of the SC submitted that the 1997 resolution was an in-house exercise; and declaration regarding assets by judges is only voluntary and that the resolution describes the submissions as confidential. Further, he said that those judges who have submitted declarations to the CJI have done so in their personal capacity and not official capacity and so any disclosure of information would be violation of the 1997 resolution.
     
    The CIC ordered that information must be provided within four weeks by the CPIO of the SC. Instead, the CPIO appealed in the Delhi High Court.
     
    When the HC upheld the CIC, he along with the registrar of the SC filed an appeal in the SC. 
     
    Today, the verdict is good news for transparency and accountability in judiciary.
     
    (Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.) 
     
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