Venkatesh Nayak vs State Bank Of India on 24 November, 2021

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Central Information Commission

Venkatesh Nayak vs State Bank Of India on 24 November, 2021

1. The issues under consideration arising out of the second appeal dated 02.11.2018 include non-receipt of the following information raised by the appellant through his RTI application dated 28.05.2018 and first appeal dated 05.07.2018:-

(i) The denomination wise total number of electoral bonds sold by each of authorized branches in March and April 2018 along with the total number of buyers of each denomination.

(ii) The total number of buyers of electoral bonds in each category, namely, individuals, HUF, company, Firm, Charitable Trust and Others who purchased electoral bonds from each of SBIS's authorized branches in March and April,2018.

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(iii) A clear photocopy of all application forms received by authorized branches against which electoral bonds were sold in March and April 2018.

(iv) A clear photocopy of all redemption slips received and accepted by authorized branch from every political party in relation to electoral bonds till date.

(v) The methodology applied by Bank to ascertain whether or not a political party redeeming electoral bonds with any of authorized branches had secured at least 1% of the votes polled during the last round of general elections to Parliament or the State Legislatures, till date.

(vi) A clear photocopy of all returns or reports, by whatever name called, submitted by respondent Bank to the Government of India regarding the sale and encashment of electoral bonds till date.

(vii) A clear photocopy of all returns or reports, by whatever name called, submitted by SBI Bank to the Government of India regarding the sale and encashment of electoral bonds till date; and

(viii) A clear photocopy of all returns or reports, by whatever name called, submitted by respondent Bank to the Reserve Bank of India regarding the sale and encashment of electoral bonds till date.

2. Succinctly facts of the case are that the appellant filed an application dated 28.05.2018 under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), State Bank of India, Corporate Centre, Mumbai, seeking aforesaid information. The CPIO vide letter dated 15.06.2018 replied to the appellant. Not satisfied with the reply, the appellant filed first appeal dated 05.07.2018. The First Appellate Authority vide order dated 08.08.2018 disposed of the first appeal. Aggrieved by the order of the FAA, the appellant filed the second appeal dated 02.11.2018 before this Commission which is under consideration.

3. The appellant has filed the instant appeal dated 02.11.2018 inter alia on the grounds that he was aggrieved by the CPIO's reply against point nos. (i) to (iv) and (vi) Page 2 of 16 to (viii) of the RTI application. The appellant requested the Commission to direct the CPIO to provide the information on point nos. (iii), (iv),(vi),(vii) and (viii) of the RTI application, direct the respondent to make appropriate changes to its records management procedures in order to make access to information available to the general public relating to the sale and redemption of Electoral Bonds; direct the respondent to disclose all information pertaining to Electoral Bonds suo motu hence forth complete information and take necessary action as per Section 20 (1) of the RTI Act.

4. The CPIO vide letter dated 15.06.2018 gave point-wise reply wherein they had furnished information on point nos. (i) and (v) of the RTI application and the same is reproduced as under:

"(i) March,2018 Denomination of Bond 1000 10,00,000 1,00,00,000 Total Branch Chennai Main 6 40 13 59 Kolkata Main 2 200 10 212 New Delhi Main 1 10 52 63 Mumbai Main 1 70 115 186 Grand Total 10 320 190 520 April, 2018 Denomination of 1000 1,00,000 10,00,000 1,00,00,000 Total Electoral Bond Branch Kolkata Main 2 - 100 30 132 Mumbai Main - - - 51 51 New Delhi Main 3 - - 10 13 Chennai Main 2 - - 1 3 Gandhinagar Main - 10 38 9 57 Grand Total 7 10 138 101 256 Page 3 of 16

(v) The list of all the eligible Political Parties who have secured at least 1% vote in last General Election to the Parliament or the State Legislature has been prepared from the official website of ECI (eci.nic.in) referring to the results of the respective Elections."

Regarding point no.(ii) of the RTI application, the CPIO replied that desired information was not maintained/compiled in the ordinary course of business and compilation thereof would disproportionately divert the resources of the Bank and hence, it was exempted from disclosure under Section 7(9) of the RTI Act, 2005. They further denied the information sought on point nos. (iii), (iv),(vi) (vii) and (viii) of the RTI application on the ground of personal information of third party, held by the bank in fiduciary capacity, hence, it was exempted under section 8 (1) (e) & (j) of the RTI Act. The FAA vide order dated 08.08.2018 directed the CPIO to ascertain the correct name of the branch from the concerned department and provide the same to the appellant. The FAA further agreed with the views taken by the CPIO on point no. (ii) of the RTI application and against point nos. (iii), (iv),(vi) (vii) and (viii) of the RTI application directed the CPIO to quote correct section of the RTI Act for not providing the information.

Hearing on 01.12.2020:

4.1. The appellant attended the hearing through audio conference and on behalf of the respondent Ms.Lalima De, Deputy General Manager(RTI), Ms. Anita Bishnu, Law Officer and Shri Narender Pratap Singh, Assistant General Manager, State Bank of India, Bandra, attended the hearing through video conference.

4.2. The respondent while defending their case inter alia submitted that they had already furnished point-wise reply/information to the appellant as per the provisions of the RTI application.

4.3. The Commission passed the following directions on 01.01.2021:

"6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, notes that as per the request of Page 4 of 16 the appellant, he was contacted for audio conference. However, due to some technical issue audio conference could not be held and the appellant could not present his submissions. Therefore, in the interest of justice, both the parties are given a final opportunity to appear before this Commission and present their case. Accordingly, the matter is adjourned."

Hearing on 23.04.2021 4.4. The appellant and on behalf of the respondent Ms. Lalima De, Deputy General Manager (RTI), Ms. Anita Bishnu, Law Officer and Shri Narender Pratap Singh, Assistant General Manager, State Bank of India, Bandra, attended the hearing through audio conference.

4.5. The Commission passed the following directions on 21.06.2021:

"6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, notes that the appellant filed additional written submissions on 21.04.2021. The respondent pleaded to file counter-submissions to the appellant's submissions. In view of the above, acceding to the respondent's request, they are directed to file para-wise counter submissions to the additional written submissions dated 21.04.2021 filed by the appellant within six weeks. Meanwhile, the matter is adjourned."

Hearing on 07.09.2021:

5. The appellant attended the hearing through audio conference and on behalf of the respondent Ms. Lalima De, Deputy General Manager(RTI), Ms. Anita Bishnu, Law Officer and Shri Narender Pratap Singh, Assistant General Manager, State Bank of India, Bandra, attended the hearing through video conference.

5.1. The appellant inter alia drew attention to the additional written submissions vide letter dated 21.04.2021. The appellant further submitted that the respondent had reiterated the position taken by the then CPIO and the FAA and that the information sought at point nos. (iii), (iv), (vi), (vii) and (viii) of the instant RTI application was third party information and held by the Bank (i.e., the State Bank of India) in fiduciary capacity. The information related to total number of buyers of electoral bonds which did Page 5 of 16 not involve any personal details of individuals was also withheld by the respondent. The appellant further submitted that the claim of exemption under section 44 of State Bank of India Act was not sustainable in the eyes of law as the Section 22 of the RTI Act gave its provisions overriding effect over all other laws for the time being in force, including any instrument having effect by virtue of any law other than this Act. Besides, the Electoral Bonds Scheme, 2018, was not a legislation duly enacted by Parliament or any State Legislature. It was merely an instrument brought into existence by the Government of India in exercise of the powers conferred on it by subsection (3) of Section 31 of the Reserve Bank of India Act, 1934 (2 of 1934). In his additional submissions submitted by the appellant on 23.04.2021, he emphasized on point no. (v) of the RTI application and the related reply received from the then CPIO, SBI, was provided which is reproduced as under:

"The list of all eligible political parties who have secured at least 1% vote in last general election to the Parliament or State Legislature has been prepared from the official website of ECI (eci.nic.in) referring to the results of the respective elections."

However, he had filed another RTI application before Election Commission of India wherein the CPIO, ECI had replied that no such information was compiled in that regard. Therefore, the reply given by the respondent was misleading. Further, the SBI was not performing its due diligence to ascertain as to whether or not a political party, seeking to redeem electoral bonds it had received by way of contribution from one or more donors, met the 1% vote share requirement mentioned as the eligibility requirement of Electoral Bonds Scheme, 2018. The appellant reiterated that there were sufficient public interest grounds to require the disclosure of the information, to ensure transparency of action in order to make Government and its instrumentalities accountable to the governed. The appellant pleaded that penal action under section 20 (1) of the RTI Act be initiated against Shri S.K. Thakur for furnishing false and misleading information and that the information be collected as per section 4 (1) (a) of the RTI Act regarding the number of individuals, HUF, Company, Firm, Charitable Page 6 of 16 Trust and others who purchased electoral bonds from each of SBI's authorized branches during every phase of sale of electoral bonds.

5.2 The respondent while defending their case inter alia submitted that in compliance of the FAA's order they had replied to the appellant vide letter dated 24.11.2020 and provided total number of electoral bonds sold by each of their authorized branches in March 2018 and April 2018. However, the information pertaining to total number of electoral bonds in each category namely, individuals, HUF, company, firm, etc. was voluminous and not maintained in the ordinary course of business, therefore, was exempted under provision of section 7 (9) of RTI Act. The respondent submitted additional counter submissions vide letter dated 27.09.2021. The respondent submitted that as per the Gazette notification no. 20 dated 02.01.2018 clause 2 (b) "Authorised bank" meant the State Bank of lndia authorised to issue and encash the bonds in the branches specified. Further, the eligibility criterion is defined in the Gazette Notification No. 20 dated 02.01.2018 clause 3(3), which reads as under:

"Only the Political Parties registered under section 29A of the Representation of the People Act, 1951 (43 of 1951) and secured not less than one percent of the votes polled in the last General Election to the house of the People or the Legislative Assembly, as the case may be, shall be eligible to receive the Bond."

Accordingly, SBI referred to the data statistics pertaining to General Elections to Lok Sabha/General Election or State Legislative Assembly Elections/Vidhansabha, whichever was applicable, as available at the Election Commission of India (ECI) website to check a political party's eligibility for receiving Electoral Bonds proceeds, With a view to have central control and to ensure that only one Current Account was opened for a political party for EB redemption. The respondent stated that SBI at central level, provided approval to the Authorized Branches for opening of Current Account of Eligible political parties for the purpose, subject to the fulfillment of extant terms and conditions for opening of current account. It was further submitted that the core issue pertaining to the very validity of the Electoral Bonds Scheme was currently sub judice before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide its interim order Page 7 of 16 dated 12.04.2019 had declined to stay the sale of the electoral bonds, however, directed the political parties to submit the details of donations received by them from the donors in a sealed cover to the Election Commission. As per the said interim order, the sealed covers would remain in the custody of the Election Commission of India and the Election Commission of India would abide by such further orders as may be passed by the Hon'ble Court. The respondent further submitted that till date there was no direction by the Hon'ble Supreme Court to make the said information public. The State Bank of India was the only Nodal Bank authorised under the said Scheme by the Govt. to sell Electoral Bonds and thus in view of the Hon'ble Supreme Court order, the Bank could not disclose the information even if the Bank was not party to the petition pending before the Hon'ble Apex Court. The interim stay passed by the Hon'ble Apex Court would have direct bearing on SBI since the entire scheme was under challenge and all the related parties to the said Scheme, be it Election Commission, Government or the Nodal Bank (State Bank of India) would automatically be bound by the interim stay order declared passed by the Hon'ble Supreme Court. Therefore, it is humbly prayed that since the Hon'ble Supreme Court is already seized of the issue and has refused to stay the said scheme till date and since there are no specific directions to make the information public, the said scheme continued to be valid and continued to cast an unambiguous obligation/duty on the Authorized Bank to maintain confidentiality and therefore the Public Authority was right in denying the sought for information.

6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, notes that the respondent replied to the RTI application dated 28.05.2018 on 15.06.2018. The respondent have already given information against point nos.1(i), (ii) and against point nos. (iii) to (v) exemption was claimed. As regards bifurcation of information under point 1(ii) it has been claimed that the same is not maintained. Besides, the appellant has claimed that the respondent bank was not doing due diligence w.r.t. eligibility criteria of the political parties. Before dwelling upon the issues raised in second appeal import of some of the relevant terms such as information, right to information, record etc., may be discussed.

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6.1. Definition of Information under RTI Act, 2005 "Section 2(f) of the RTI Act defines 'Information' as any material in any form, including records, documents, memos, email, opinion, contract report logbooks, samples, models held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force".

Further, Section 2 (i) defines the term "record" which includes:

a) document, manuscript and file

b) microfilm, microfiche and facsimile copy of a document

c) reproduction of image or images embodied in such microfilm (whether enlarged or not); and

d) other material produced by a computer or any other device RTI Act provides that only such information is required to be supplied under the Act, which already exists in material form and is held by the public authority or held under the control of the public authority. According to the Act, the public information officer is not to generate or interpret information, nor is he or she to solve problems raised by applicants or to respond to hypothetical questions.

Further, the term "held by or under the control of public authority" in section 2(j) of RTI Act has to be reads in a manner that it effectuates and is harmony with the term "information" as defined in section 2(f).

6.1.1 The definition of "right to information" as given under section 2(j) in the RTI Act is reproduced as under:

"2. Definitions.--In this Act, unless the context otherwise requires,--

(a)....

(j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to--

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(i) inspection of work, documents, records;

(ii) taking notes, extracts, or certified copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;"

6.1.2 In Institute of chartered accountant of India V. Shahunak H. Satya and ors., [CIVIL APPEAL NO. 7571 of 2011] the Supreme Court laid down the following observations:

"26. We however agree that it is necessary to make distinction regarding information intended to bring transparency to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources."

6.1.3. In Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors. [2011 (8) SCALE 645] the Supreme Court laid down the following observations:

"The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of 'information' and 'right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.

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.

"....A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority......."

6.1.4 In Khanapuram Gandaiah V Administrative Officer & Ors. [S.L.P. (Civil) 34868 of 2009], the Supreme Court vide judgment dated 04.01.2010 laid down the following observations:

"This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions. A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion. A judge is not bound to explain later on for what reasons he had come to such a conclusion."

6.1.5 In case of A.K. Vasudev V. CPIO, M/o Consumer Affairs, Food & Public Distribution, New Delhi, it was held that respondent is seeking answers to his questions, which does not fall within the definition of 'information' as per Section 2(f) of the RTI Act. The Commission refers to the decision of Hon'ble Bombay High Court at Goa in the matter of Dr. Celsa Pinto V. Goa State Information Commission (W.P. No. 419 of 2007, decision dated 03.04.2008) wherein it was held as follows: "The Page 11 of 16 definition of information cannot include within its fold answers to the question "why" which would be same thing as asking the reason for a justification for a particular thing. The public information authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justification are matter within the domain of adjudicating authorities and cannot properly be classified as information."

6.2. The Right to Privacy is not enumerated as a Fundamental Right either in terms of Article 21 of the Constitution or otherwise. It, however by reasons of an elaborate explanation of the Apex Court, has been held to be an essential ingredient of "personal liberty".

6.2.1. The Supreme Court in case of Kharak Singh vs. The State of U. P. & Others [1963 AIR 1295] dated 18.12.1962 has held as under:

"Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our constitution does not expressly declare a right to privacy as a Fundamental Right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life.........."

6.2.2. The Supreme Court in case of R.Rajgopal vs. State of Tamil Nadu [1995 AIR 264] dated 07.10.1994 has held as under:

"...The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters."

6.2.3. In Thappalam Service Cooperative Bank Limited vs State of Kerala(2013) 16 SCC 82, the Supreme Court has recognized that the Right to Privacy as a Fundamental Right emanates from Article 21 of the Constitution.

6.2.4. The Commission further notes that the Hon'ble Supreme Court of India in case of Justice K. S. Puttaswamy (Retd.) vs. Union of India, WP(C) No. 494/2012 dated 26.09.2018 has observed that:

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"446) (m) ......... it stands established, without any pale of doubt that privacy has now been treated as part of fundamental right. The Court has held that, in no uncertain terms, that privacy has always been a natural right which given an individual freedom to exercise control over his or her personality. The judgment further affirms three aspects of the fundamental right to privacy namely:

              (i)     Intrusion with an individual's physical body,
              (ii)    Informational privacy and
              (iii)   Privacy of choice."

6.2.5. The Hon'ble Supreme Court of India had further observed that informational privacy deals with the person's mind. "In this manner, it protects a person by giving her control over the dissemination of material that is personal to her and disallowing unauthorized use of such information by the State."

6.2.6. The Constitutional Court of South Africa in NM & Ors vs Smith & Ors., 2007 (5) SA 250(CC), while dealing with the fundamental right to privacy recognized by the South African Constitution, has made the following observations:

"An implicit part of this aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the information or not. That decision should not be made by others. This aspect of the right to privacy must be respected by all of us, not only the state......"

6.3. The respondent emphasized that the Hon'ble Supreme Court had already seized of the matter relating to the electoral bond scheme and had refused to stay the said scheme vide their order dated 26.03.2021 and since there were no specific directions to make the information public, the said scheme continued to be valid and continued to cast an obligation/duty on the respondent to maintain confidentiality and not to disclose information in respect of point nos. (iii), (iv),(vi),(vii) and (viii) of the RTI application.

The authorities have claimed exemption by virtue of the provisions under section 8(1) Page 13 of 16

(e) and (j) of the RTI Act. The claim of the respondent has been buttressed by the law laid down by the Supreme Court in K S Puttaswamy case.

6.4 As regards the due diligence exercised or not may for the reasons discussed above, not fall within the ambit of 'information' or 'Right to Information'.

6.5 The presumption that the legislature understands the needs of its people and that even its discrimination and classifications are based on adequate grounds has been acknowledged by the Supreme Court itself (in special reference No 1 of 2012,[(2012), 10 SCC 1]. The logic of balance exercise of judicial power has an assurance of institutional stability and re-organization of boundary of power is implicit in the Constitutional arrangement. It is contended that the failings of democracy and inadequacies of the democratic process cannot be invoked to negate the core of the democratic principle, namely that ultimate sovereignty vests in the people. Thus, arrangements of governance embodied in the Constitution resulting from the exercise of their free will cannot be used to deprive the ultimate masters of the right of final decision over their destiny. It is argued that "juridification of politics and politization of the judiciary" would be a loss for both the legislature and judiciary and that judiciary cannot act as a "censor of all governmental action". There have been plethora of judicial orders highlighting the issue of restraint by judicial bodies in substituting their wisdom over those who have been assigned the function of implementation of Laws.

In that regard, in Manohar Lal Sharma v Union of India [(2016) 13 SCC 710], the Supreme Court declined to entertain a PIL seeking the Court's directions to restrain the union government from incurring security and other expenses with respect to certain individuals in the state of Jammu and Kashmir, holding that "nationally sensitive issues concerning the security of the nation ...should be left to the executive ... and that these Page 14 of 16 writs are judicially unmanageable." It is relevant to quote the landmark judgment given by the Constitution Bench in Re: Special Reference No 1 of 2012, [(2012), 10 SCC 1]:

"The Supreme Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality or (iii) procedural impropriety"

The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, feels that due information has been given to the appellant. In view of the above, there appears to be no public interest in further prolonging the matter as there is no substance in the appeal calling for intervention by the Commission. Accordingly, the appeal is dismissed.

Copy of the decision be provided free of cost to the parties.

Sd/-

(Suresh Chandra) (सुरेश चं ा) ा) Information Commissioner (सूचना आयु ) दनांक/Date:23.11.2021 Authenticated true copy R. Sitarama Murthy ( आर. सीताराम मूत ) Dy. Registrar (उप पंजीयक) 011-26181927( ०११ २६१८१९२७)

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Addresses of the parties:

CPIO :

1. STATE BANK OF INDIA CORPORATE CENTRE, 9TH FLOOR, STATE BANK BHAWAN, MADAME CAMA ROAD, MUMBAI - 400 021 THE F.A.A, Chief General Manager (Operations), State Bank of lndia, Banking Operations Department, Corporate Centre, State Bank Bhawan, 6th Floor, Madame Cama Road, Nariman Point,Mumbai - 400021 Venkatesh Nayak Page 16 of 16

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