Just last month, the Supreme Court gave a stern warning and final opportunity to the Reserve Bank of India (RBI) on the central bank’s position on the disclosure of annual inspection reports of banks, list of wilful defaulters and other details sought by activists under the Right to Information (RTI) Act. However, instead of following the apex court directive, the RBI, on 30 April 2019, just uploaded its revised disclosure policy under the RTI Act on its website. The RBI has not yet placed in the public domain the annual inspection reports of banks as per the directives from the Supreme Court.
Girish Mittal, one of the petitioners in the Supreme Court, says, “In spite of the clear and specific order from the Supreme Court for providing the information on bank inspection reports, the RBI has amended its disclosure policy and continues to say that inspection reports are exempt under section 8(1). This, in other words, means that the RBI is in no mood to follow orders from the Supreme Court.”
The new disclosure policy of RBI
restrains citizens from inspecting, supervising and scrutinising reports of banks and other financial institutions under the RTI Act. The disclosure policy also debars citizens from taking any information derived from these reports or contained in such reports, and supervisory action taken thereon using sections 8 (1) (h) and 8(1)(j) of the Act.
Last month, in an order, the bench of Justice L Nageswara Rao and Justice MR Shah had said, "Though we could have taken a serious view of RBI continuing to violate the directions issued by this Court, we give them a last opportunity to withdraw the disclosure policy insofar as it contains exemptions, which are contrary to the directions issued by this Court. The RBI are duty bound to furnish all information relating to inspection reports and other material apart from the material that was exempted in para 77 of the judgment. Any further violation shall be viewed seriously by this Court.”
The apex court also directed the central bank to withdraw its non-disclosure policy, which the Court concluded is in violation of the Supreme Court's judgement in 2015. The RBI, as per 2015 judgement, was directed to disclose the annual audit reports of the banks, status of NPAs (non-performing assets) and action taken thereon.
However, instead of withdrawing its disclosure policy, the RBI has revised the policy. The list of ‘exemptions’, which the central bank claims’ is only indicative and not exhaustive, and has exemptions such as Section 45NB of the RBI Act.
In its revised disclosure policy, the RBI has exempted various other information such as inspection or scrutiny reports of non-banking financial companies (NBFCs) and returns filed by the NBFCs.
However, it is interesting to note that Section 22 of the RTI Act overrides all the other laws as far as disclosure of information is concerned. Section 22 of the Act 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.”
Mr Mittal says, "RBI in its submission before the Supreme Court contempt case has given an undertaking that they will amend the disclosure policy to be in cognisance with the orders of apex court in the Jayantilal Mistry Vs RBI judgement. But it is clear from the amendment carried out by RBI on 30th April that the central bank had given a false undertaking and wants to continue to defy orders of the Supreme Court as well as the order in the contempt petition."
Earlier, both, the apex court as well as central information commission (CIC), had held that RBI cannot refuse to put in the public domain the annual inspection reports of banks. However, RBI has refused to follow these orders saying that these reports contain 'fiduciary information' as defined under the RTI Act and, hence, cannot be placed in the public domain.
RTI activists Subhash Chander Agrawal and Mr Mittal had moved the top court seeking contempt action against RBI governor for not complying with its 2015 judgement.
The petitioners had claimed that RBI and its former governor Dr Urjit Patel had 'wilfully and deliberately' disobeyed the apex court's judgement asking the central bank to disclose information under the RTI Act.
The two petitioners had sought initiation of contempt of court action against former Governor of RBI for not disclosing information as directed by the top court.
One of the contempt petitions filed by Mr Mittal mentioned that RBI refused to provide information sought about the inspection reports of some banks.
In the petition, Mumbai-based Mr Mittal, represented by senior counsel Prashant Bhushan and Pranav Sachdeva, had contended that he had sought information under the RTI Act in December 2015 like copies of inspection reports of ICICI Bank, Axis Bank, HDFC Bank and State Bank of India (SBI) from April 2011 and copies of case files, with file notings on various irregularities detected by RBI in the case of Sahara group of companies and erstwhile Bank of Rajasthan.
However, in January 2016, RBI denied the information saying that such information is exempted under Section 8(1)(e) of the RTI Act and Section 45NB of the RBI Act.
The petitioners recalled the Supreme Court ruling in a case that RBI is clearly not in any fiduciary relationship with any bank. RBI has no legal duty to maximise the benefit of any public sector or private sector bank and, thus, there is no relationship of 'trust' between them. (Read: SC issues contempt notice to RBI in RTI case)
Last year in November, the CIC too had issued a show-cause notice to Dr Patel, the then governor of RBI, for not honouring a judgement of the Supreme Court on disclosure of wilful defaulters’ list who had not paid loans of Rs50 crore and more.
Earlier in February 2016, the Supreme Court had directed RBI to furnish a list of the companies which are in default of loans in excess of Rs500 crore or whose loans have been restructured under corporate debt restructuring (CDR) scheme by banks and financial institutions. (Read: Supreme Court asks RBI to submit list of big defaulters
Before that in December 2015, the apex court, in a landmark judgement, had told RBI that the banking regulator cannot withhold information citing 'fiduciary relations' under the RTI Act.