The CIC asked RBI to share action taken against scams and economic inconsistencies of United Mercantile Cooperative Bank and the daily progress reports. This is the 202nd in a series of important RTI judgements given by former Central Information Commissioner Shailesh Gandhi
The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) of Reserve Bank of India to provide complete information about action taken by the regulator against scams or economic inconsistencies of United Mercantile Cooperative Bank Ltd. The PIO had denied this information citing Sections 8(1)(a) and (e) of the Right to Information (RTI) Act.
While giving the judgement on 12 March 2012, Shailesh Gandhi, the then Central Information Commissioner, said, "...the information sought in query 1 is not exempt under Sections 8(1)(a), (d) and (e) of the RTI Act as claimed by the Respondent. Even if it had been exempt, Section 8(2) of the RTI Act would mandate disclosure of the information sought. Citizens have a right to know about the functioning of Banks including any regulatory lapses. If there are irregularities in the functioning of a Bank pursuant to which action has been taken by RBI- as sought in query 1, citizens certainly have a right to know about the same."
Kanpur (Uttar Pradesh) resident, Ashwini Dixit, on 25 July 2011, sought from the PIO information regarding United Mercantile Cooperative Bank. Here is the information he sought and the reply provided by the PIO...
1. Action taken by RBI against scams/economic inconsistencies of United Mercantile Cooperative Bank Ltd. (the “Bank”) along with the daily progress reports.
PIO's reply- Yes, inspection of the Bank in relation to scams/economic inconsistencies was done. Based on the inconsistencies mentioned in the inspection report, clarification was sought from the Bank vide letter dated 8 July 2011. Further, information sought was based on the observations/ conclusions of the inspection report, which is confidential in nature. The report is finalized based on the information received from the Bank, which was given to RBI in confidence. Moreover, disclosure of the inspection report would adversely affect the banking system of the country. The information sought was exempt under Sections 8(1)(a) and (e) of the RTI Act.
2. Number of extension counters which can be opened by the Bank-as authorized by RBI along with details of expenditure incurred in opening the same. Did the Bank adopt any tender procedure in relation to such counters and if yes, provide description of such tenders.
PIO's reply- The Bank was given permission to open five counters. Information regarding the expenditure incurred and whether any tender procedure was adopted is not available with RBI.
Citing incomplete and unsatisfactory information provided by the PIO, the appellant Dixit filed his first appeal.
However, there was no mention of any order passed by the First Appellate Authority (FAA). Dixit then approached the CIC with his second appeal.
During the hearing on 27 January 2012, the Bench of Mr Gandhi, directed both the parties to send in their written submissions before 30 January 2012 and reserved its decision.
During the next hearing on 12 March 2012, Mr Gandhi, after perusing the submissions, observed that information as per the record has already been provided in relation with query 2 and the issue before the Bench was whether information sought in query 1 was exempt from disclosures under Section 8(1)(a) and (e) of the RTI Act.
The PIO said, the information sought (in query 1) is based on the scrutiny conducted by RBI in exercise of its powers under Section 35(1A) of the Banking Regulation Act, 1949 (the BR Act) and disclosure of inspection reports and the information submitted to RBI or collected by RBI in terms of Section 27 of the BR Act would be detrimental to the interest of depositors, public and banking policies.
Mr Gandhi said, Section 22 of the RTI Act expressly provides that the provisions of the RTI 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 the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that the RTI Act shall override anything inconsistent contained in any other law, he added.
The High Court of Delhi in Union of India vs Central Information Commission & Anr. 2009 (165) DLT 559 has held that-
“Section 22 of the RTI Act gives supremacy to the said Act and stipulates that the provisions of the RTI Act will override, notwithstanding anything to the contrary contained in the Official Secrets Act or any other enactment for the time being in force. This non-obstante clause has to be given full effect to, in compliance with the legislative intent. Wherever there is a conflict between the provisions of the RTI Act and another enactment already in force on the date when the RTI Act was enacted, the provisions of the RTI Act will prevail…”
Mr Gandhi said, "From the above submissions as well as on a bare perusal of the provisions of the BR Act cited by the Respondent, there appear to be restrictions on access to information held by or under the control of RBI. This is prima facie inconsistent with the RTI Act, which mandates disclosure of information unless exempted under Sections 8 and 9 of the RTI Act. Therefore, in accordance with Section 22 of the RTI Act, the Bench holds that the provisions of the RTI Act shall override the provisions of the BR Act as regards furnishing information. Consequently, whether or not information should be furnished has to be examined in light of Sections 8 and 9 of the RTI Act only."
Mr Gandhi also mentioned that RBI had received an interim stay on orders of the Bench in seven matters. The PIO, in his submissions stated that all these seven matters pertain to the issue of whether inspection reports are protected from disclosure under Section 8 of the RTI Act, which has not been conclusively determined and is pending before the Courts. The PIO of RBI also referred to the observations of the Supreme Court of India in B Banerjee vs Anita Pan and Kamal Lal Ghosal & Ors vs Ena Dutta AIR 1975 SC 1146 and submitted that multiplicity of litigation must be avoided to the extent possible as a matter of public policy.
After perusing the stay orders, the Bench noted that all the matters cited by the PIO does not pertain to the specific issue of protection of inspection reports under Section 8 of the RTI Act. "None of the stay orders enumerates the reasons/ grounds on the basis of which the Bench’s orders were stayed. Since no reasons have been advanced for the grant of stay, it is not possible for the Bench to ascertain the same. Moreover, the Respondent (PIO) has also not produced any evidence to show that the High Courts have granted a stay on the specific issue of disclosure of inspection reports under the RTI Act. The CIC is a statutory authority set up specifically for the purpose of adjudicating on matters relating to the RTI Act. Given the above, the Bench must continue to discharge the duty placed upon it and authoritatively resolve issues arising under the RTI Act," Mr Gandhi said.
The PIO argued that the information sought is exempt from disclosure under Section 8(1)(a) of the RTI Act. He submitted that any misreading or out of context appreciation of the observations made in the inspection reports may be hazardous and lead to cascading effect on all other entities which may have exposure to such bank or share business relations with such bank. The consequences may be irreversible and may result in dilution of confidence of the banking system. The adverse market reactions to such sensitive information may be phenomenal and may be of systemic risk to the economy, banks being the backbone of the economy. In this context, reliance has been placed on Paragraph 16 of the decision of a Full Bench of the Commission in RR Patel vs RBI CIC/MA/A/2006/00406 and 00150 dated 07/12/2006.
Mr Gandhi said, "In RR Patel's Case, the Full Bench was considering the issue of disclosure of RBI's inspection report of a Cooperative Bank. One of the issues before the Bench was whether the inspection report was exempt from disclosure under Section 8(1)(a) of the RTI Act. The Full Bench relied on a decision of the Punjab & Haryana High Court in RBI vs Central Government Industrial Tribunal (dated 07/05/1958) which had observed that 'In an integrated economy like ours, the job of a regulating authority is quite complex and such an authority has to decide as to what would be the best course of action in the economic interest of the State. It is necessary that such an authority is allowed functional autonomy in decision making and as regards the process adopted for the purpose'."
Based on the above, the Full Bench, in paragraph 16, ruled inter alia that, "In view of this, and in light of the earlier discussion, we have no hesitation in holding that the RBI is entitled to claim exemption from disclosure u/s 8(1)(a) of the Act if it is satisfied that the disclosure of such report would adversely affect the economic interests of the State. The RBI is an expert body appointed to oversee this matter and we may therefore rely on its assessment. The issue is decided accordingly".
"It appears that the Full Bench was of the view that if RBI concluded that disclosure of inspection reports would adversely affect the economic interests of the State, the said information may be denied under Section 8(1)(a) of the RTI Act. There is no observation that the Full Bench had come to this conclusion by itself. Further, the observations of the Punjab & Haryana High Court in RBI vs Central Government Industrial Tribunal (dated 7 May 1958) relied on by the Full Bench were made much before the advent of the RTI Act and cannot therefore, be a guide for deciding on exemptions under the RTI Act," the Bench noted.
Furthermore, the RBI in RR Patel's case claimed that if inspection reports of banks were to be disclosed it would affect the economic interests of the state. The Full Bench decision appears to rely on the submissions of the Deputy Governor of RBI provided vide letter dated 21 November 2006 and were as follows:
"(i) Among the various responsibilities vested with RBI as the country's Central Bank, one of the major responsibilities relate to maintenance of financial stability. While disclosure of information generally would reinforce public trust in institutions, the disclosure of certain information can adversely affect the public interest and compromise financial sector stability.
(ii) The inspection carried out by RBI often brings out weaknesses in the financial institutions, systems and management of the inspected entities. Therefore, disclosure can erode public confidence not only in the inspected entity but in the banking sector as well. This could trigger a ripple effect on the deposits of not only one bank to which the information pertains but others as well due to contagion effect.
(iii) While the RBI had been conceding request for information on actions taken by it on complaints made by members of the public against the functioning of the banks and financial institutions and that they do not have any objection in giving information in respect of such action taken or in giving the substantive information pertaining to such complaints provided such information is innocuous in nature and not likely to adversely impact the system.
(iv) However, disclosure of inspection reports as ordered by the Commission in their decision dated September 6, 2006 would not be in the economic interest of the country and such disclosures would have adverse impact on the financial stability.
(v) It would not be possible to apply section 10(1) of the Act in respect of the Act in respect of the inspection report as portion of such reports when read out of context result in conveying even more misleading messages."
Mr Gandhi noted that the RBI argued that that it did not wish to share the information sought, as some of it could "adversely affect the public interest and compromise financial sector stability". RBI was unwilling to share information, which might bring out the 'weaknesses in the financial institutions, systems and management of the inspected entities'. It was further contended that 'disclosure can erode public confidence not only in the inspected entity but in the banking sector as well. This could trigger a ripple effect on the deposits of not only one bank to which the information pertains but others as well due to contagion effect'.
He said, "It appears that the RBI argued that citizens were not mature enough to understand the implications of weaknesses, and RBI was the best judge to decide what citizens should know. Citizens must be given selective information about weaknesses exposed in inspection, to ensure that they have faith in the banking sector. They must see the financial and banking sector only to the extent, which RBI wishes. If the RBI made mistakes, or there was corruption, citizens would suffer. This appears to go against the basic tenets of democracy and transparency."
The CIC cited a clarion call in State of Uttar Pradesh vs Raj Narain (1975) 4 SCC 428, by Justice Mathew that stated...
"In a government of 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 public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their 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".
Mr Gandhi said, "The idea that citizens are not mature enough to understand and will panic is repugnant to democracy. The Supreme Court of India has recognized that the Right to Information is part of the fundamental right of citizens under Article 19 of the Constitution of India. Any constraint on the fundamental rights of citizens has to be put with great care even by Parliament. The exemptions under Section 8 and 9 of the RTI Act are the constraints put by Parliament and adjudicating bodies have to carefully consider whether the exemptions apply before denying any information under the RTI framework."
"It is pertinent to mention that in RR Patel's case, the Full Bench did not come to any specific conclusion that disclosure of inspection reports would prejudicially affect the economic interests of the State. Instead it left it to RBI to determine whether disclosure of the said information would attract Section 8(1)(a) of the RTI Act. This was primarily on the basis that RBI is an expert body and that any decision taken by it should be relied upon by the Commission. No legal reasoning whatsoever was given by the Bench for concluding the above. There is no evidence or indication that the Commission after taking cognizance of RBI's views had come to the same conclusion."
"If the position of the Full Bench is to be accepted, it would lead to a situation where RBI would have the final say in whether information should be provided to a citizen or not. Extending this logic, all public authorities could be the best judge of what information could be disclosed, since they are likely to be experts in matters connected with their working. In such an event the Information Commission would have no role to play. Parliament evidently expected that the Information Commission would independently decide whether the exemptions are applicable. The Full Bench did not give any independent finding that the disclosure of information would affect the economic interests of the State in its decision. This would completely negate the fundamental right to information guaranteed to the citizens under the RTI Act. In the case being considered by the full bench, it decided to accept the judgement of RBI. It is open to a Commission to defer to a judgement of another body, but this does not establish any principle of law, and would apply only to the specific matter," Mr Gandhi said.
Mr Gandhi said, the powers of the Commission are limited under the RTI Act and certainly do not confer upon it the power of review. "It is clear from the Full Bench ruling in RR Patel's case that it was reviewing the two decisions of Professor MM Ansari, then Information Commissioner on merits. The Full Bench certainly did not have the power to do so, given the provisions of the RTI Act and the law laid down by the Supreme Court in this regard. In fact, the Supreme Court in the Kapra Mazdoor Ekta Union Case clearly considered and clarified the ruling in the Grindlays' Bank Case (relied upon by the Full Bench). It appears that the Full Bench reviewed the issues based on merits in RR Patel's case in ignorance of the law laid down by the Supreme Court in Kapra Mazdoor Ekta Union Case. In other words, the RR Patel Case is per incuriam and is consequently, not binding on this Bench," he added.
"Having laid down the above, this Bench examines the contention of the PIO in the present matter that the information is protected by the exemption under Section 8(1)(a) of the RTI Act. While this Bench has considered RBI’s judgment in the present matter, whether exemption under Section 8(1)(a) of the RTI Act will apply or not, must be decided by the Commission," Mr Gandhi said.
Section 8 (1) (a) exempts "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".
The information sought pertains to action taken by RBI against scams/ economic inconsistencies of the United Mercantile Cooperative Bank along with the daily progress reports. It is unlikely that disclosure of information sought in query 1 would prejudicially affect the sovereignty and integrity of India, the security, strategic or scientific interests of the State, or relation with foreign State, or lead to incitement of an offence. Hence it must be examined whether the economic interests of the State are likely to be prejudicially affected by disclosure of the information, Mr Gandhi said.
He said, "This Bench is unable to understand how disclosing information about the action taken by RBI against scams/economic inconsistencies of the United Mercantile Cooperative Bank along with the daily progress reports would affect the economic interests of the Indian Nation. The submissions of the PIO appear to suggest that the economic state of this Nation is extremely fragile and therefore, the information sought should not be disclosed. This Bench is not convinced with the argument that disclosure of information would lead to any harm to the economic interests of India; in fact it would help to improve the fundamental strength of the economic foundations of the country and safeguard against sudden disruptions, which could be caused if all the information was not available to public. This Bench therefore, cannot leave such a decision to the wisdom of RBI. Disclosure would lead to greater public faith in Government and the financial institutions. Hence the Commission does not agree with the contention of the PIO that the information is exempt under Section 8 (1) (a) of the RTI Act."
The PIO also submitted that the information sought was protected under Section 8(1)(e) of the RTI Act. He argued that in the economic interest of the State and to discharge the responsibilities attached to fiduciary relationship, RBI as the regulator of banks would not be able to disclose the inspection report, file notings, correspondence related to the same and the information submitted to RBI or collected by RBI in terms of Section 27 of the B.R. Act until the matter is judicially determined finally.
Section 8(1)(e) of the RTI Act exempts from disclosure,
“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”.
Mr Gandhi said, "This Bench, in a number of decisions, has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship."
"Information provided by banks or institutions subordinate to RBI is done in fulfilment of statutory compliance. This would not create any fiduciary relationship as such between RBI and the subordinate banks or institutions. The criteria defining a fiduciary relationship, as described above, must be satisfied which does not appear to have been done in the present matter. Inspections, audits and investigations are done by RBI officers as part of statutory duty and banks have to undergo this in compliance with statutory requirements. Therefore, the denial of information on query 1 on the basis of Section 8(1)(e) is rejected," he said.
The PIO cursorily argued that the information sought is protected under Section 8(1)(d) of the RTI Act.
Section 8(1)(d) of the RTI Act exempts from disclosure- “information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;”.
"In order to claim the exemption under Section 8(1)(d) of the RTI Act, Mr Gandhi said, "the PIO must establish that disclosure of the information sought (which may include commercial or trade secrets, intellectual property or similar information) would result in harming the competitive position of a third party. As per Section 19(5) of the RTI Act, the burden of establishing the applicability of the exemption lies on the PIO. The PIO has not adduced any arguments to show how the nature of the information sought falls within the ambit of Section 8(1)(d) of the RTI Act. Further, no explanation has been given to establish that the information if disclosed would affect the competitive position of a third party, if any. The burden required to be discharged by the PIO under Section 19(5) of the RTI Act has not been done."
Section 8(2) of the RTI Act states,
“Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interests in disclosure outweighs the harm to the protected interests”.
Mr Gandhi said, RBI is a regulatory authority which is responsible for inter alia monitoring subordinate banks and institutions. "If there are certain irregularities in the working and functioning of such banks and institutions, the citizens certainly have a right to know about the same. The best check on arbitrariness, mistakes and corruption is transparency, which allows thousands of citizens to act as monitors of public interest. There must be transparency as regards such organisations so that citizens can make an informed choice about them. In view of the same, this Bench is of the considered opinion that even if the information sought was exempted under Sections 8(1)(a), (d) or (e) of the RTI Act,-as claimed by the Respondent,- Section 8(2) of the RTI Act would mandate disclosure of the information sought," he said.
The CIC then referred to the conclusion and recommendation of the full Bench in paragraph 21, which stated...
"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 contrary, some such institutions may have attempted to defraud the public of their moneys kept with such institutions in trust. RBI being the Central Bank is one of the instrumentalities available to the public which as a regulator can inspect such institutions and initiate remedial measures where necessary. It is important that the general public particularly the shareholders and the depositors of such institutions are kept aware of RBI's appraisal of the functioning of such institutions and taken into confidence about the remedial actions initiated in specific cases. This will serve the public interest. The RBI would therefore be well advised to be proactive in disclosing information to the public in general and the information seekers under the Right to Information Act, in particular. The provisions of Section 10(1) of the RTI Act can therefore be judiciously used when necessary to adhere to this objective".
Mr Gandhi said, "The full Bench, clearly stated that a larger public interest was likely to be served by disclosure of the said information. It suggested that RBI should disclose most of this information in a proactive manner. The Full Bench of the Commission had effectively given a recommendation to RBI to disclose this information under Section 4 of the RTI Act. I agree with the conclusion arrived at by the bench that the disclosure of the appraisal of financial institutions by RBI and remedial measures must be shared with public in a proactive manner."
"The RBI appears to imply that the Supreme Court’s judgement/ decision referred by it expects Courts and Commissions to go beyond the words of the RTI Act in harmonizing various interests. The Commission is convinced that the Supreme Court could never have meant this. The Courts may rule that a law is ultra vires. But without such a ruling, they are duty bound to interpret the laws as per the words and intent of the law as it stands. Any other position would challenge the basic structure of the Constitution, and the Supreme Court could not have done this. Therefore, the argument of the Respondent is devoid of merit," the Bench noted.
Here is the summary of the ruling...
1. The Commission rules that the information sought by the appellant does not fall within the exemptions of Section 8(1) (a), (d) or (e).
2. The Commission also finds that there is a larger public interest in disclosure of the information.
3. The Full Bench decision in RR Patel vs RBI is per incuriam for the reasons elaborated above. However, the Commission agrees with the observations of the Full Bench in Paragraph 21 as regards there being a larger public interest in disclosure of the information sought.
4. The Commission, being an adjudicatory authority set up under the RTI Act, must ensure that the right to information of citizens is effected but at the same time, specific interests mentioned in Sections 8(1) and 9 of the RTI Act are protected as mandated by the Supreme Court of India in the Aditya Bandopadhyay Case. The limits are however set by the RTI Act as passed by Parliament.
While allowing the appeal, the Bench then directed the PIO of RBI to provide complete information as per record in relation with query 1 to Dixit, the appellant, before 10 April 2012.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2011/003293/17640
Appeal No. CIC/SG/A/2011/003293
Appellant : Ashwini Dixit
Kanpur City, Uttar Pradesh
Respondent : A Udgata,
PIO & CGM (UBD),
Reserve Bank of India (RBI),
Central Office, 1st Floor, Garment House,
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