Friday, November 4, 2011

[HumJanenge] CIC asks RBI to disclose its inspection reports of banks

Here it is.
Sid

>Can someone forward the copy of the CIC's order in this regard.

Thanks
Abhinav


++++++++++++++++++++++++++++++++

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office)

Old JNU Campus, New Delhi - 110067

Tel: +91-11-26161796


Relevant facts emerging from the Appeal:

Decision No. CIC/SM/A/2011/001487/SG/15434

Appeal No. CIC/SM/A/2011/001487/SG

Appellant                                           :           Mr.
Jayantilal N. Mistry, Behind Chora, Gorva, Baroda, Gujarat

Respondent                                        :           CPIO &
Chief General Manager, RBI,

Urban Banks Department, Central Office,

1st Floor, Garment House, Worli, Mumbai – 400018

RTI application filed on                      :           19/10/2010

PIO replied on                                    :           18/11/2010

First Appeal filed on                           :           Not dated

First Appellate Authority order of      :           30/03/2011

Second Appeal received on                :           23/05/2011

    S.No.
   Information sought
   Reply of Public Information Officer (PIO)

    1.
   Procedure, rules and regulations of inspection   being   carried
out on   co   - operative banks.
   RBI is conducting inspections under section 35 of the B. R. Act,
1949 (AACS) at prescribed intervals.

    2.
   Last RBI investigation and audit report carried out by Mr. Santosh
Kumar during

    23/04/2010 to 06/05/2010 sent to Registrar of  the  co  -
operative of  Gujarat, Gandhinagar  on  Makarpura  Industrial Estate
Co - Operative Bank Ltd. Reg No.

    2808.
   Information sought is maintained by the bank in a fiduciary
capacity and was obtained by RBI during the course of inspection of
the bank and hence cannot be given to outsiders. Moreover, disclosure
of such information may harm the interest of the bank and banking
systems. Such information  is also  exempt  from  disclosure under
Sections 8(1)(a) and (e) of the RTI Act.

    3.
   Last 20 years inspection report carried out with  the name  of
inspector  on the above named bank and action taken report.
   Same as at 2. above.

    4.
   Reports  on  all  co  -  operative  banks  that have gone into
liquidation and action taken against all directors and managers for
recovery of public funds, powers utilized by RBI and analysis, and
procedures adopted.
   (i) Same as at 2. above.

    (ii) This information is not available with the department.

    5.
   Names of remaining co - operative banks under  your  observations
against irregularities and action taken reports.
   No specific information has been sought.

    6.
   Period    required    to    take    actions    and implementations.
   No specific information has been sought.


Grounds for First Appeal:

Dissatisfied with information provided by CPIO.

Order of the First Appellate Authority (FAA):

Based on the contentions of the Appellant, the FAA made the following
observations inter alia:

(i) The RTI Act was enacted to secure access to information under the
control of public authorities, but subject to the provisions of
Sections 8 and 9 of the RTI Act only. In the present matter, the CPIO
has provided all the available information to the Appellant.

(ii) Section 8(1)(j) of the RTI Act is not attracted in the present
matter. The FAA agreed with the CPIO's response in relation to queries
2, 3 and first part of 4. Reliance was placed upon the Bench decision
of  the Commission  in   R.  R.  Patel  v.  RBI  CIC/MA/A/2006/00406
and  00150 dated

07/12/2006.

(iii)   The  FAA  relied   on  the  decision  of  the  Commission  in
Rajiv   Daiya  v.  UCO  Bank  CIC/PB/A/2008/00589 and 67/SM and
observed that as regards the second part of query 4, where the CPIO
has stated that the information is not available with the department,
the question of furnishing the information does not arise.

(iv) Information sought in query 6 was too sweeping and general in
nature, and therefore did not require any further consideration.

Vide letter dated 21/04/2011, the CPIO provided certain clarifications
to the Appellant.

Grounds for Second Appeal:

Dissatisfied with the FAA's order.

Relevant Facts emerging during Hearing held on 17 October 2011:

The following were present:

Appellant: Mr. Jayantilal N. Mistry via video conference from NIC
Studio – Vadodara;

Respondent: Mr. A. Udgata, CPIO & Chief General Manager via video
conference from NIC Studio

–Mumbai.

As regards, queries 2, 3 and first part of 4, the CPIO relied on the
Commission's Full Bench decision in  R. R. Patel v. RBI
CIC/MA/A/2006/00406 and 00150 dated 07/12/2006 to justify the denial
of information. In relation to query 5, the CPIO stated that there was
no compiled list of all co – operative banks where irregularities had
been found. However, the CPIO submitted that he would now be able to
provide information for the previous year. The CPIO claimed that
disclosing information on queries 2,

3 and the first part of 4 is exempted under Section 8 (1) (a) of the
RTI Act since disclosure of irregularities could lead to loss of faith
in some banks and this could affect the economic interests of the
State.  He  contended that  the  full  bench  decision  of  the
Commission  in   R.  R.  Patel v.  RBI  CIC/MA/A/2006/00406 and 00150
dated 07/12/2006 had accepted this contention of RBI.

As regards query 6 the Commission agrees with the PIO's observation.
The order was reserved at the hearing held on 17/10/2011.

Decision announced on 1 November 2011:

Based on perusal of papers and submissions of the parties, it appears
that information as per records has already been provided in relation
to query 1. As regards queries 5 and 6, if there is any information
available on record, the same must be provided to the Appellant. In
relation to queries 2, 3 and first part of 4, information has been
denied on the basis of Sections 8(1)(a) and (e) of the RTI Act.
Support was    also placed          on      the         Commission's
                  Full Bench    decision    in    R.   R.   Patel   v.
  RBI    CIC/MA/A/2006/00406 and 00150 dated 07/12/2006.

Section 8(1)(e) of the RTI Act

It is contended by the Respondent that the information sought in
queries 2, 3 and first part of 4 was exempt under Section 8(1)(e) of
the RTI Act. 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". 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. In business or law, we
generally mean someone who has specific duties, such as those that
attend a particular profession or role, e.g. doctor, lawyer, financial
analyst or trustee. Another important characteristic of such a
relationship is that the information must be given by the holder of
information who must have a choice- as when a litigant goes to a
particular lawyer, a customer chooses a particular bank, or a patient
goes to particular doctor. An equally important characteristic  for
the relationship  to  qualify  as  a  fiduciary  relationship  is
that  the provider  of information gives the information for using it
for the benefit of the one who is providing the information. All
relationships usually have an element of trust, but all of them cannot
be classified as fiduciary. 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.

In the present matter, information provided by banks/ institutions
subordinate to the RBI is done in fulfillment of statutory compliance.
This would not create any fiduciary relationship as such between RBI
and the subordinate banks/ 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.  The inspection, audit and investigation are done by RBI
officers as part of a statutory duty and banks have to undergo this in
compliance with statutory requirements. Therefore, the Respondent's
contention that the information sought was exempt under Section
8(1)(e) of the RTI Act is rejected.

Section 8(1)(a) of the RTI Act

The Respondent has also claimed that the information sought in queries
2, 3 and first part of 4 was exempt under Section 8(1)(a) of the RTI
Act. The PIO contended during the hearing that if the information was
disclosed, it could lead to a reduction of faith in banks, when people
realized the shortfalls and could lead to a run on the banks. This
could affect the economic interests of the State. The  PIO  was
primarily  depending  on  the decision  of  a  full  bench  in   R.
R.  Patel  v.  RBI CIC/MA/A/2006/00406 and 00150 dated 07/12/2006.

In R. R. 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  v.  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".

From a reading of the above, 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 v. Central Government Industrial Tribunal (dated 07/05/1958)
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.

Furthermore, the RBI in R. R. 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
21/09/2006 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."

Thus RBI argued 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'. 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, who are
considered mature enough to decide on who should govern them, who give
legitimacy  to  the government,  and  framed  the  Constitution  of
India  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.

I would like to remember Justice Mathew's clarion call in  State of
Uttar Pradesh v. Raj Narain (1975)

4 SCC 428 - "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".

It is also worthwhile remembering the observations of the Supreme
Court of India in  S. P. Gupta v. President of India & Ors. AIR 1982
SC 149:

"It is axiomatic that every action of the government must be actuated
by public interest but even so we find cases, though not many, where
governmental action is taken not for public good but for personal gain
or other extraneous considerations. Sometimes governmental action is
influenced by political and other motivations and pressures…

At times, there are also instances of misuse or abuse of authority on
the part of the executive. Now, if secrecy were to be observed in the
functioning of government and the processes of government were to be
kept hidden from public scrutiny, it would tend to promote and
encourage oppression, corruption and misuse or abuse of authority, for
it would all be shrouded in the veil of secrecy without any public
accountability. But if there is an open government with means, of
information available to the public there would be greater exposure of
the functioning of government and it would help to assure the people a
better and more efficient administration. There can be little doubt
that' exposure to public gaze and scrutiny is one of the surest means
of achieving a clean and healthy administration. It has been truly
said that an open government is clean government and a powerful
safeguard against political and administrative aberration and
inefficiency…

This is the new democratic culture of an open society towards which
every liberal democracy is evolving and our country should be no
exception. The concept of an open government is the direct emanation
from the right to know which seems to be implicit in the right of free
speech and expression guaranteed under Article 19(1)(a). Therefore,
disclosure of information in regard to the functioning of Government
must be the rule and secrecy an exception justified only where the
strictest requirement of public interest so demands...

Even though the head of the department or even the Minister may file
an affidavit claiming immunity from disclosure of certain unofficial
documents in the public interest, it is well settled that the court
has residual powers to nevertheless call for the documents and examine
them. The court is not bound by the statement made by the minister or
the head of the department in the affidavit. While the head of the
department concerned was competent to make a judgment on whether the
disclosure of unpublished official records would harm the nation or
the public service, he/she is not competent to decide what was in the
public interest as that it the job of the courts. The court retains
the power to balance the injury to the State or the public service
against the risk of injustice, before reaching its decision on whether
to disclose the document publicly or not."

The idea that citizens are not mature enough to understand and will
panic is repugnant to democracy. For over 60 years citizens have
handled their democratic rights in a mature fashion, punished leaders
who showed tendencies of trampling their rights, and again given them
power once the leaders had learnt their lessons not to take liberties
with the liberties of the sovereign citizens of India. 'We the people'
gave ourselves the Constitution, nurtured it and will take it forward.
The fundamental rights of citizens, enshrined in the Constitution of
India cannot be curbed on a mere apprehension of a public authority.
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 the India. Any constraint on the fundamental
rights of citizens has to be done 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 R. R. 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 judgment of RBI. It is open to a Commission to
defer to a judgment of another body, but this does not establish any
principle of law, and would apply only to the specific matter.

It is apparent from the scheme of the RTI Act that the Commission is a
quasi- judicial body which is responsible for deciding appeals and
complaints arising under the RTI Act. While deciding such cases, the
Commission would necessarily have to consider whether there were any
cogent reasons for denial of information under Sections 8 and 9 of the
RTI Act. The Commission cannot abdicate its responsibilities  under
the  RTI  Act to RBI on  the  ground that  the  latter  is an  expert
body.  The Commission cannot rely solely on the decision of the public
authority and must look into the merits of the case itself. It must
determine, on its own, whether the denial of information by the PIO
was justified as per Sections 8 and 9 of the RTI Act. Since the Full
Bench has not recorded any comment which shows that it consciously
agreed that Section 8 (1)(a) of the RTI Act was applicable in such
matters,  it does not establish  any legal  principle  or
interpretation  which  can be  considered  as a precedent or ratio.
Thus the decision is applicable only to the particular matter before
it, and does not become a binding precedent.

Furthermore, the Full Bench in R. R. Patel's Case was constituted to
reconsider two decisions dated

06/09/2006 of Professor M. M. Ansari, then Information Commissioner.
As described above, the issues to be reconsidered by the Full Bench
included whether the claim of RBI for exemption under Section 8(1)(a)
of the RTI Act in respect of inspection of reports could be held
justified. The Full Bench relied on the Supreme Court's decision in
Grindlays' Bank v. Central Government Industrial Tribunal AIR 1981 SC
606 and noted that when a review is sought due to a procedural defect,
the inadvertent error committed by a tribunal must be corrected ex
debito justitiae to prevent the abuse of its power  and  such  power
is  inherent  in  every  court or  tribunal.  On this  basis,  the
Full Bench proceeded to review the decisions of Professor M. M.
Ansari, then Information Commissioner.

The Supreme Court of India in  Patel Narshi Thakershi & Ors. v. Sri
Pradyumansinghji AIR 1970 SC

1273 has noted - "It is well settled that the power to review is not
an inherent power. It must be conferred by law either specifically or
by necessary implication". In Kuntesh Gupta v. Mgmt. of Hindu Kanya
Mahavidyalaya, Sitapur & Ors. AIR 1987 SC 2186, the Supreme Court
observed – "It is now well established that a quasi judicial authority
cannot review its own order, unless the power of review is expressly
conferred on it by the statute under which it derives its
jurisdiction". It must be noted that a three- Judge Bench of the
Supreme Court in  Kapra Mazdoor Ekta Union v. Mgmt. of M/s Birla
Cotton Appeal (Civil) No. 3475/2003 decided on 16/03/2005 held:

"…it is  apparent that  where  a  Court or  quasi judicial  authority
having  jurisdiction  to adjudicate on merit proceeds to do so, its
judgment or order can be reviewed on merit only if the Court or the
quasi judicial authority is vested with power of review by express
provision or by necessary implication. The procedural review belongs
to a different category. In such a review, the Court or quasi judicial
authority having jurisdiction to adjudicate proceeds to do so, but in
doing so commits a procedural illegality which goes to the root of the
matter and invalidates the proceeding itself, and consequently the
order passed therein. Cases where a decision is rendered by the Court
or quasi judicial authority without notice to the opposite party or
under a mistaken impression that the notice had been served upon the
opposite

party, or where a matter is taken up for hearing and decision on a
date other than the date fixed for its hearing, are some illustrative
cases in which the power of procedural review may be invoked. In such
a case the party seeking review or recall of the order does not have
to substantiate the ground that the order passed suffers from an error
apparent on the face of the record or any other ground which may
justify a review. He has to establish that the procedure followed by
the Court or the quasi judicial authority suffered from such
illegality that it vitiated the proceeding and invalidated the order
made therein, inasmuch the opposite party concerned was not heard for
no fault of his, or that the matter was heard and decided on a date
other than the one fixed for hearing of the matter which he could not
attend for no fault of his. In such cases, therefore, the matter has
to be re-heard in accordance with law without going into the merit of
the order passed. The order passed is liable to be recalled and
reviewed not because it is found to be erroneous, but because it was
passed in a proceeding which was itself vitiated by an error of
procedure or mistake which went to the root of the matter and
invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central
Government Industrial Tribunal and others (supra), it was held that
once it is established that the respondents were prevented from
appearing at the hearing due to sufficient cause, it followed that the
matter must be re-heard and decided again."

From a combined reading of the above decisions, it is clear that a
quasi – judicial authority can review a decision on merits only if it
is vested with power of review by express provision or by necessary
implication. 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 R. R. Patel's Case that it was
reviewing the two decisions of Professor M. M. 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 R. R. Patel's Case in ignorance of the law laid
down by the Supreme Court in Kapra Mazdoor Ekta Union Case. In other
words, the R. R. Patel Case is per incuriam and is consequently, not
binding on this Bench.

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. Since I do not chose
to defer to the RBI's judgment in this matter, I will evaluate whether
the PIO's contention of exemption under Section 8 (1) (a) is tenable.
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". It is unlikely that disclosure 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". Hence I will examine
whether the economic interests of the State are likely to be
prejudicially affected by disclosure of the information. The
information which has been claimed to be exempt under Section 8 (1)
(a) is query 2, 3 and first part of query 4:

"2. Last RBI  investigation  and  audit report carried  out by Mr.
Santosh Kumar  during

23/04/2010 to 06/05/2010 sent to Registrar of the co - operative of
Gujarat, Gandhinagar on

Makarpura Industrial Estate Co - Operative Bank Ltd. Reg No. 2808.

3. Last 20 years inspection report carried out with the name of
inspector on the above named bank and action taken report.

4. Reports on all co - operative banks that have gone into liquidation
and action taken against all directors and managers for recovery of
public funds, powers utilized by RBI and analysis, and procedures
adopted."

Thus the PIO and the FAA claim that revealing the investigation and
audit report of Makarpura Industrial Estate Co-operative Bank Ltd. in
2010 and the last twenty years would 'prejudicially affect the
economic  interests  of the  State'.  This  Bench  is  unable  to
understand  how  disclosing  the

investigation and audit report of Makarpura Industrial Estate
Co-operative Bank Ltd. Reg. no. 2808 would in any miniscule way affect
the economic interests of the Indian Nation. Hence there is no ground
for refusing information with regard to query 2 and 3. Further,
reports on all cooperative banks which have gone in liquidation sought
in query 4, are also completely unlikely to affect the economic
climate or interests of the Country. Declaring the audit, inspection
and investigation reports of all co- operative banks which have gone
into liquidation cannot do any further harm to such banks. If the
banks have gone into liquidation, what more damage can come on them?
The PIO perhaps rates the economic state of this Nation as being
extremely fragile to make such a claim. I therefore cannot leave such
a decision to the wisdom of RBI.

I now refer to the conclusion and recommendation of the Full Bench of
the Commission in paragraph

21 - "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".

The  Full  bench  had  independently  come  to  this  conclusion
after applying  its  mind.  It  had-,  at paragraph 21,- 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. Public interest would be
served by such disclosure as the bench has concluded on its own,
without relying on RBI. It is unfortunate that RBI appears to have
taken no steps to proactively disclose this information in the last
five years.

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". Once the bench had recorded its finding
of a public interest in disclosure it should have given reasons why it
did not order disclosure as per the provisions of Section 8(2) of the
RTI Act. The bench appears have overlooked the provisions of Section 8
(2) of the RTI Act. The full bench had arrived at the conclusion that
there was a larger public interest in disclosure, but did not give any
directions based on this finding, nor did it give any reasons for not
giving any directions. If the Full Bench had considered the provisions
of Section 8(2) of the RTI Act, it would have ruled that the requisite
information should be disclosed. In view of the above, I am of the
considered view that the ruling in R. R. Patel's Case is per incuriam
inasmuch it was rendered without considering the statutory provision
Section 8 (2) of the RTI Act. Hence, the decision is not a binding
precedent.

The RBI is a regulatory authority which is responsible for inter alia
monitoring subordinate banks and institutions.  Needless to state
significant amounts of public  funds are kept with such banks and
institutions. Therefore, it is only logical that the public has a
right to know about the functioning and working of such entities
including any lapses in regulatory compliances. Merely because
disclosure of such information may adversely affect public confidence
in defaulting institutions, cannot be a reason for denial of
information under the RTI Act. 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 Section 8(1)(a) or (e) of
the RTI Act,-as claimed by the Respondent,- Section 8(2) of the RTI
Act would mandate disclosure of the information. The Full bench had
also concluded that there was a public interest in disclosure and I
concur with its finding.

The Appeal is allowed.

The PIO is directed to provide the information as per records to the
Appellant in relation to queries 2 to 6 before  30 November 2011.

Notice of this decision be given free of cost to the parties.

Any information in compliance with this order will be provided free
cost as per Section 7(6) of RTI Act.

Shailesh Gandhi

Information Commissioner

1 November 2011

(In any correspondence on this decision, mentioned the complete
decision number.)(AK)

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