Right to Information vis-a-vis Right to Privacy; SC invokes doctrine of ex debito justitiae to hear HDFC’s plea challenging RBI directions mandating disclosure of confidential & sensitive information

Supreme Court: In a case raising a significant question of law as to whether the Supreme Court’s decision can be challenged in a writ petition after attaining finality? The Division Bench of B.R. Gavai* and C.T. Ravikumar, JJ., rejected the interlocutory application challenging the maintainability of the writ petition while holding that though the concept of the finality of judgment has to be preserved, at the same time, the principle of “ex debito justitiae¹” cannot be given a go bye. The Court added—

“To err is human, and the Courts including the Apex Court are no exception.”

Background

The instant interlocutory application had been filed to assail the maintainability of the writ petitions filed by various Banks including private banks, inter alia, challenging the action of the Reserve Bank of India (RBI) in directing disclosure of confidential and sensitive information pertaining to their affairs, their employees and their customers under the Right to Information Act, 2005 (the RTI Act), which is otherwise exempt under Section 8 the RTI Act. The petitioners contended that disclosure of such information is not only contrary to the RBI Act, the Banking Regulation Act, 1949, but and also adversely affects the right to privacy of such Banks and their consumers.

Decisions Challenged

Noticeably, the RBI had issued directions to the petitioners/Banks to disclose certain information pursuant to the decision of the Supreme Court in Reserve Bank of India v. Jayantilal N. Mistry, (2016) 3 SCC 525. Similarly, the Supreme Court in the case of Girish Mittal v. Parvati V. Sundaram, (2019) 20 SCC 747, while holding that the RBI has committed contempt of this Court by exempting disclosure of material that was directed to be given by this Court, has also held that the RBI was duty-bound to furnish all information relating to inspection reports and other materials. Resultantly, the RBI has modified the policy into a one-line policy, providing therein that the disclosure of information was to be in accordance with the judgment and order of this Court in Girish Mittal (supra).

Hence, the petitioners have challenged the final judgment in Jayantilal N. Mistry (supra) on the following grounds:

• Section 11 of the RTI Act provides that when any information relating to a third party has been sought, a written notice is required to be given to such third party by the Central Public Information Officer or State Public Information Officer, and the submissions by a such third party are required to be taken into consideration while taking a decision about the disclosure of the information. This aspect has not been taken into consideration in Jayantilal N. Mistry (supra).

• RBI’s Inspection Reports in respect of the inspection carried out under Section 35 of the Banking Regulation Act, 1949 are so confidential that they cannot even be provided to the Directors individually. Reliance was placed on the communication issued by the RBI to all the Banks dated 14-03-1998 in this regard.

• The fact that Section 35(5) of the Banking Regulation Act, 1949 provides a specific procedure as to in what manner the inspection report would be published, it being a special Act providing for a particular manner for disclosure of information, the Act will have an overriding effect over the RTI Act which was not taken into consideration in Jayantilal N. Mistry (supra). 1

• Similarly, in Jayantilal N. Mistry (supra) the Court has not taken into consideration the provisions of the Credit Information Companies (Regulation) Act, 2005.

• Section 45NB (4) of the RBI Act which emphasizes on the confidentiality of certain information with regard to non-banking companies begins with a non-obstante clause, stating 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. Which again has not been noticed in the case of Jayantilal N. Mistry (supra).

• The Courts have to strike a balance between public interest and private interest and personal information cannot be directed to be disclosed unless outweighing public interest demands it to be done.

Can a Supreme Court decision be challenged in a writ petition after it has attained finality?

The applicants in interlocutory application relied on Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744, to contend that a judicial decision cannot be corrected by the Supreme Court in the exercise of its jurisdiction under Article 32 of the Constitution. Citing the decision of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, the applicants further argued that the judicial proceedings in this Court are not subject to the writ jurisdiction thereof. On the contrary, the petitioners relied on the maxim to contend that the rules of procedure are the handmaidens of justice and not the mistress of justice. He relies on the maxim “ex debito justitiae”.

The Court, after considering various judicial pronouncements, held that when a question of fact has reached finality inter se between the parties, it cannot be reopened in a collateral proceeding. However, an issue of law can be overruled later on. Referring to the case of A.R. Antulay (supra), the Court stated that no man should suffer because of the mistake of the Court.

Doctrine of ex debito justitiae

Following the dictum in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, the Court opined that the concern of the Court for rendering justice in a cause is not less important than the principle of finality of its judgment and the Court has to balance ensuring certainty and finality of a judgment of the Court of last resort on one hand and dispensing justice on reconsideration of a judgment on valid grounds on the other hand. The Court remarked,

“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.”

The 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 the exercise of its inherent power. Emphasising on the principle of ex debito justitiae, the Court observed that no man should suffer a wrong by the technical procedure of irregularities. The Court stated,

“Once a judicial satisfaction is reached that the direction was not open to being made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the court to rectify the mistake by exercising its inherent powers.”

Hence, clarifying the decision in Rupa Ashok Hurra (supra), the Court said that the aforesaid decision does not lay down a proposition that the ratio decidendi of an earlier decision cannot be examined or differed with in another case. Rather, it had held that if the Court is satisfied that the issue raised in the later petition requires consideration and, in that context, the earlier decision requires re-examination, the Court can certainly proceed to examine the matter or refer the matter to a larger Bench, if the earlier decision is not of a smaller Bench.

Conclusion

In light of the above, the Court noted that the decision in Jayantilal N. Mistry (supra) directed the RBI to issue directions to the petitioners/Banks to disclose the information even with regard to the individual customers of the Bank, which may adversely affect the individuals’ fundamental right to privacy, as recognised in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. The Court noted that no doubt the right to information is also a fundamental right, however, in case of such a conflict, the Court is required to achieve a sense of balance.

Hence, without expressing any final opinion, the Court held that prima facie, the judgment in Jayantilal N. Mistry (supra) did not take into consideration the aspect of balancing the right to information and the right to privacy. Accordingly, the preliminary objection raised by the applicants was held to be not sustainable and the same was rejected.

[HDFC Bank Ltd. v. Union of India, 2022 SCC OnLine SC 1337, decided on 30-09-2022]

*Judgment by: Justice B.R. Gavai

Advocates who appeared in this case:

For the Applicants: Advocate Prashant Bhushan

For the Writ Petitioners/Banks: Senior Advocates Girish Mittal and Rakesh Dwivedi, Mukul Rohatgi, Dushyant Dave, Jaideep Gupta, and K.V. Viswanathan, and Advocate Divyanshu Sahay

*Kamini Sharma, Editorial Assistant has put this report together.