RBI's Direction To Disclose Confidential Information- SC Rejects Preliminary Objection Against Writ Petition Filed By Banks

The Supreme Court has rejected the preliminary objection raised against the maintainability of writ petitions filed by various banks challenging the action of the Reserve Bank in directing disclosure of confidential and sensitive information pertaining to their affairs, their employees and their customers under the Right to Information Act, 2005.

"We, therefore, hold that the preliminary objection as raised is not sustainable. The same is rejected.", the bench of Justice BR Gavai and Justice CT Ravikumar observed.

The petitioners have challenged the action of the RBI, vide which the RBI issued directions to the Petitioners-Banks to disclose certain information, which according to the petitioners is not only contrary to the provisions as contained in the RTI Act, the RBI Act and the Banking Regulation Act, 1949, but also adversely affects the right to privacy of such Banks and their consumers.

The RBI had issued such directions in view of the decision of Supreme Court in the case of RBI v. Jayantilal N. Mistry and Girish Mittal vs. Parvati V. Sundaram and another.

"As such, the petitioners would have no other remedy than to approach this Court. As observed by Ranganath Misra, J. in the case of A.R. Antulay (supra) that, this being the Apex Court, no litigant has any opportunity of approaching any higher forum to question its decision. The only remedy available to the petitioners would be to approach this Court by way of writ petition under Article 32 of the Constitution of India for protection of the fundamental rights of their customers, who are citizens of India.", the Court observed before rejecting the preliminary objection so raised.

Applicant­-Girish Mittal had sought dismissal of the writ petitions while contending that the present writ petitions, in effect, are challenging the final judgment and Order passed by the Court in the case of Reserve Bank of India vs. Jayantilal N. Mistry and hence were not maintainable and is liable to be dismissed.

Advocate Prashant Bhushan, appearing on behalf of the applicant­-Girish Mittal relied on the judgment of a Nine-Judge Bench of the Supreme Court in the case of Naresh Shridhar Mirajkar and others vs. State of Maharashtra and Anr. in support of his proposition that a judicial decision cannot be corrected by the Court in exercise of its jurisdiction under Article 32 of the Constitution of India.

He also relied on the judgment of a Seven­-Judge Bench of the Court in the case of A.R. Antulay vs. R.S. Nayak and another to contend that the judicial proceedings in the Court are not subject to the writ jurisdiction thereof.

On the other hand, Senior Advocates Rakesh Dwivedi, Mukul Rohatgi, Dushyant Dave, Jaideep Gupta, and K.V. Viswanathan and Advocate Divyanshu Sahay, appearing on behalf of the writ petitioners-Banks submitted that the right to privacy has been said to be as implicit fundamental right by a Five­-Judge Constitution Bench of the Court in the case of Supreme Court Advocates-on­Record Association and another vs. Union of India.

It was further submitted that Section 45NB of the RBI Act emphasizes on the confidentiality of certain information with regard to non-banking companies. It was stated that sub­section (4) of Section 45NB of the RBI Act, which is a non­obstante clause, provides that, notwithstanding anything contained in any law for the time being in force, no court or tribunal or other authority shall compel the Bank to produce or to give inspection of any statement or other material obtained by the Bank under any provisions of this Chapter.

The Supreme Court observed that "This Court has observed that though Judges of the highest court do their best, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. It has been held that in such a case it would not only be proper but also obligatory both legally and morally to rectify the error. This Court further held that to prevent abuse of its process and to cure a gross miscarriage of justice, the Court may reconsider its judgments in exercise of its inherent power."

The Court further noted that in the present case, admittedly, the writ petitioners-Banks were not parties in the case of Jayantilal N. Mistry (supra). The Court observed that though the Miscellaneous Applications filed by HDFC Bank and others for recall of the judgment and order in the case of Jayantilal N. Mistry (supra) were rejected by the Court, the Court did not foreclose the right of the petitioners-Banks to pursue other remedies available to them in law.

"Without expressing any final opinion, prima facie, we find that the judgment of this Court in the case of Jayantilal N. Mistry (supra) did not take into consideration the aspect of balancing the right to information and the right to privacy.", the Court held.

The Court also observed that the only remedy available to the petitioners would be to approach the Court by way of writ petition under Article 32 of the Constitution of India for protection of the fundamental rights of their customers, who are citizens of India.

Therefore, the Court rejected the preliminary objections.

Cause Title- HDFC Bank Ltd. & Ors v. Union of India & Ors.

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