whether the information sought under the Right to Information Act, 2005 (hereinafter referred to as the ‘RTI Act’) can be denied by the Reserve Bank of India (RBI) and the other banks on the ground of economic interest, commercial confidence, fiduciary relationship or public interest.

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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Contempt Petition (C) No.928 of 2016

In

(Transfer Case (C) No.95 of 2015)

GIRISH MITTAL

…. Petitioner

Versus

PARVATI V. SUNDARAM & ANR.

…. Respondent (s)

With

Contempt Petition (C) No.412 of 2016

In

(Transfer Case (C) No.96 of 2015)

And

Contempt Petition (C) No.59 of 2017

In

(Transfer Case (C) No.95 of 2015)

J U D G M E N T

L. NAGESWARA RAO, J.

  1. The three Contempt Petitions are filed complaining of

wilful and deliberate disobedience of the directions issued by

this Court in the judgment dated 16.12.2015 in Transfer Case

(Civil) No.96 of 2015.

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  1. The subject matter of the judgment in Reserve Bank of

India v. Jayantilal N. Mistry1 is whether the information sought

under the Right to Information Act, 2005 (hereinafter referred to

as the ‘RTI Act’) can be denied by the Reserve Bank of India (RBI)

and the other banks on the ground of economic interest,

commercial confidence, fiduciary relationship or public interest.

The facts of all the 11 Writ Petitions which were transferred to

this Court are similar. The information that was sought by the

Respondents in the transfer cases was refused on the ground that

there was a fiduciary relationship between the RBI and the other

banks, and hence, the information cannot be disclosed in view of

the exemption under Section 8(1)(d) and (e) of the RTI Act. In

all the cases that were transferred to this Court, the Central

Information Commissioner directed the RBI to disclose the

information sought for by the Respondents in the transfer cases.

The RBI assailed the orders passed by the Central Information

Commission by filing Writ Petitions in the High Courts which

were transferred to this Court and decided by the judgment

dated 16.12.2015. In the said judgment dated 16.12.2015, this

Court held that the Right to Information Act, 2005 overrides all

earlier laws in order to achieve its objective and the only

1 2016 (3) SCC 525

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exceptions to access to information were those which were

contained in Section 8 of the RTI Act. The argument of the RBI

that the information sought for by the Respondents therein was

rightly refused on the ground of fiduciary relationship, was

rejected by this Court. It was observed by this Court that there

is no fiduciary relationship between the RBI and the financial

institutions and by attaching an additional ‘fiduciary’ label to the

statutory duty, regulatory authorities have intentionally or

unintentionally created an in terrorem effect. This Court further

emphasized that RBI has a statutory duty to uphold the interests

of the public-at-large, the depositors and the country’s economy

and the banking sector. This Court was also of the opinion that

the RBI should act with transparency and not hide information

that might embarrass the individual banks and that the RBI is

dutybound to comply with the provisions of the RTI Act and

disclose the information sought by the Respondents therein. The

submission made on behalf of the RBI that the disclosure would

hurt the economic interests of the country was found to be totally

misconceived. While referring to Section 2(f) of the RTI Act, this

Court was of the opinion that the intent of the Legislature was to

make available to the general public such information which had

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been obtained by the public authorities from private bodies. On

the basis of the above observations, it was held that the RBI is

liable to provide information regarding inspection reports and

other documents to the general public.

  1. Being alive to Section 8(1) of the RTI Act, under which

information can be denied to the public to guard national

security, sovereignty, national economic interest and relations

with foreign states etc. this Court observed that not all the

information that the Government generates shall be given to the

public. Matters of 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 for expenditure or

borrowing and foreign investments could in some cases harm

the national economy, particularly, if released prematurely.

However, lower-level economic and financial information like

contracts and departmental budgets should not be withheld

under this exemption, according to this Court in the judgment

dated 16.12.2015. On the basis of the above findings, the

transfer cases filed by the RBI were dismissed and the orders

passed by the Central Information Commission were upheld.

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Contempt Petition (C) No.412 of 2016

  1. The Petitioner filed an application dated 12.10.2010

seeking information from the RBI regarding the loss to the nation

in the foreign derivative contract cases. According to him, there

was a loss of Rs 32,000/- crores. The Petitioner also sought for a

bank-wise breakup of the mark-to-market (MTM) losses. In all,

the Petitioner sought information for 10 queries in his

application. No reply was given to query numbers 1, 2, 9 and 10.

The Appellate Authority under the RTI Act directed the RBI to

provide information for queries 2, 9 and 10. Incomplete

information was given for queries 2, 9 and 10 according to the

Petitioner. The Central Information Commission directed the RBI

to furnish information in respect of queries 1, 2, 9 and 10. In

obedience to the direction issued by the Central Information

Commission, RBI furnished information for queries 2, 9, 10.

However, the RBI filed a Writ Petition in the High Court

aggrieved by the directions issued by the Central Information

Commission qua query No.1. After the judgment of this Court

on 16.12.2015, RBI provided the information for query No.1.

Query No. 1 pertained to information regarding the market

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losses on account of currency derivatives to the tune of 32,000/-

crores as stated by the RBI in an affidavit filed before the Orissa

High Court. The Petitioner sought a bank-wise breakup of the

MTM losses. The reply given by the RBI was that there was no

reference to losses of more than 32,000/- crores on account of

currency derivatives in the affidavit filed by RBI in Writ Petition

(Criminal) No. 344 of 2009 in the High Court of Orissa. The

relevant paragraph of the affidavit filed in High Court of Orissa

was also furnished to the Respondent. Not satisfied with the said

information and being convinced that the RBI was intentionally

withholding information in spite of the directions issued by this

Court, this Contempt Petition is filed.

Contempt Petition (C) No.59 of 2017

  1. The Petitioner filed an application under the RTI Act

seeking details of the Show Cause Notices and fines imposed by

the RBI on various banks. The information was not disclosed by

the RBI by claiming exemption under Section 8(1)(a), (d) and (e)

of the RTI Act on the ground that the disclosure would affect the

economic interest of the country, the competitive position of the

banks, and that the information cannot be disclosed by the RBI as

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it received the same in a fiduciary capacity. The RBI uploaded a

Disclosure Policy on 30.11.2016 on its website by which the

Public Information Officers were directed not to disclose

virtually all kinds of information. The Petitioner has filed the

above contempt case aggrieved by the disclosure policy dated

30.11.2016, which according to him, is in direct contravention of

the directions issued by this Court by its judgment dated

16.12.2015. One of the exemptions in the disclosure policy

relating to the department of banking regulation was that

information relating to specific supervisory issues emanating

from inspection or scrutiny reports received from other

supervisory departments are exempted from disclosure. Similar

exemption was given to the inspection reports falling within the

purview of the ‘department of banking supervision’. Any

information obtained from/submitted by banks/Financial

Institutions and held by the RBI in a fiduciary capacity was also

exempted from disclosure. The learned counsel for the

Petitioner submitted that the exemptions from disclosure

mentioned in the disclosure policy are contrary to the directions

issued by this Court in its judgment dated 16.12.2015.

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Contempt Petition (C) No.928 of 2016

  1. The Petitioner filed an application under the RTI Act on

18.12.2015 seeking information relating to the inspection reports

of ICICI bank, AXIS bank, HDFC bank and State Bank of India

from 01.04.2011 to the date of filing of the application. The

Petitioner sought further information relating to the Sahara

Group of Companies and Bank of Rajasthan. The information

sought by the Petitioner was not given by the Central Public

Information Officer of the RBI in view of the exemption from

disclosure under Section 8(1)(a) and (b) as the disclosure was

not in economic interest of the State, and would adversely affect

the competitive position of the third party. Though the Petitioner

was not a party to the judgment of this Court dated 16.12.2015,

he filed the contempt petition as non-furnishing the information

that he sought for was in contravention of the directions issued

by this court by its judgment dated 16.12.2015.

  1. Mr. Jaideep Gupta, learned Senior Counsel appearing for

the contemnors made a valiant effort to impress upon us that the

judgment of this court dated 16.12.2015 needs reconsideration.

He submitted that there is no intention on the part of the

Respondents to disobey the directions given by this Court in the

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judgment dated 16.12.2015. In respect of Contempt Petition (C)

No. 412 of 2016, he referred to the relevant material to submit

that the only query which remained to be answered by the RBI

was query No.1. After the judgment of this Court, the

information sought for was given to the Petitioner on 18.02.2016.

A contempt petition is not maintainable merely because the

Petitioner is not satisfied with the information given to him.

According to Mr. Gupta it is open to the Petitioner to file another

application for further information if he is of the opinion that the

entire information sought by him was not furnished. In any

event, according to Mr. Gupta, the Contempt Petition is notmaintainable. In so far as the disclosure policy dated 30.11.2016

is concerned, he argued that the said policy is superseded and

no complaint can be filed against the implementation of the

disclosure policy as the said policy does not exist. Moreover,

Mr. Gupta submitted that issuance of the said policy cannot be

held to be a violation of the directions given in the judgment

dated 16.12.2015 inviting a contempt petition. If the Petitioner is

aggrieved by the policy, he has to challenge the policy by

resorting to the remedies available to him in law. He informed

us that the policy dated 30.11.2016 is replaced by another policy

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which would be put on the website of the RBI. Mr. Gupta

strenuously submitted that a leeway was given to the RBI in the

matter of providing information on certain issues that were

mentioned in paragraph 77 of the judgment. He referred to the

said paragraph to support the disclosure policy. He finally

submitted that if this Court feels that the policy is in violation of

the directions issued by this Court, it would be taken off the

website. The main submission made by Mr. Gupta is that any

application filed under the RTI Act shall have to be dealt with

separately on its own merits.

  1. There is an element of public policy in punishing civil

contempt, since administration of justice would be undermined if

the order of any Court of law could be disregarded with

impunity.

2 There is no ambiguity in the judgment of this Court

dated 16.12.2015. After holding that there is no fiduciary

relationship between the RBI and the other banks, this Court

stressed the importance of the RTI Act, and held that it is in the

interest of the general public that the information sought for by

the Respondents therein has to be furnished. There is a specific

reference to the inspection reports and the other materials,

which were directed to be given to the Respondents therein.

2 Attorney General v. Times Newspapers Ltd. (1973) 3 All ER 54 (HL)

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The only exception that was carved out by this Court is in

paragraph 77 of the judgment, particularly, information which

has a bearing on the security of the State etc. We are not

persuaded to accept the submission of Mr. Gupta that the

judgment dated 16.12.2015 requires reconsideration as we

cannot consider the said submission while deciding the

contempt petitions. After hearing the learned counsel for the

parties, judgment was reserved in this case on 02.04.2019. The

new disclosure policy was uploaded on the RBI website on

12.04.2019. Mr. Pranav Sachdeva, learned counsel for the

petitioner is right in submitting that the new policy which

replaces the disclosure policy dated 30.11.2016 directs various

departments not to disclose information that was directed to be

given by the judgment of this Court on 16.12.2015. The

Respondents, in our opinion, have committed contempt of this

Court by exempting disclosure of material that was directed to

be given by this Court. In all fairness, Mr. Gupta has submitted

that the disclosure policy shall be deleted from the website.

  1. We do not agree with Mr. Gupta that a contempt petition is

maintainable only at the behest of a party to the judgment. The

directions issued by this Court are general in nature and any

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violation of such directions would enable an aggrieved party to

file a contempt petition.

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  1. Though we could have taken a serious view of the

Respondents 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 Respondents

are dutybound 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.

  1. The contempt petitions are disposed of with the above

directions.

..……………………………..J.

[L. NAGESWARA RAO]

..……………………………..J.

[M.R. SHAH]

New Delhi,

April 26th 2019

3 Priya Gupta v. Ministry of Health & Family Welfare, (2013) 11 SCC 404