In landmark judgment, Reserve Bank of India v. Jayantilal N. Mistry, AIR 2016 SC 1= (2016) 3 SCC 525, the main issue for consideration before the Supreme Court was whether all the information sought for under the Right to Information Act, 2005 can be denied by the RBI and “other Banks” to the public at large on the ground of economic interest, commercial confidence, fiduciary relationship (of RBI with other Banks), on the one hand, and the public interest, on the other. Rejecting all the three arguments, the Apex Court held that the RBI & other banks, as public authorities under the Act, were bound to disclose the information related to inspection reports and other documents to the applicants. 
 
The argument that disclosure would hurt the economic interests of the country is “baseless, unsubstantiated & totally misconceived”, the Court responded at para 61 of the judgment. There was no commercial confidence & fiduciary relation between RBI & other banks and that the relationship was purely statutory in nature, the Court said at paras 58-60, 62. The Apex Court discussed at length the legislative history of the RTI Act, 2005, its preamble, objectives & briefly it mentioned of structure of its provisions. It quoted the then PM of India’s speech in Parliament on the Act.
 
The RBI & other banks were, thus, directed to disclose the information to the respondents/citizens in the interests of the general public. It appears from latest developments that the RBI did not disclose the required information of annual inspection reports of banks, along with the list of willful defaulters, which was sought by the applicants under the RTI Act. Non-disclosure from RBI came under its “Disclosure Policy” 30.11.2016 that made certain information exempt from disclosure under the Act. The Apex Court vide its latest order 26-04-2019 took RBI’s non-compliance with its order dated 16-12-2015 passed in Jayantilal N. Mistry ante very seriously. So, the Court directed the RBI to withdraw its “Disclosure Policy” dated 30.11.2016 & divulge the information otherwise face the contempt proceedings.
 
The Court vide its order dated 26-04-2019 passed in Girish Mittal v. Parvati V. Sundaram , (2019) Supreme (SC) 498 reiterated its earlier opinion that while information under section 8(1) of the Act can be denied to the public to guard national security, sovereignty, national economic interest and relations with foreign States etc, the lower-level economic and financial information like contracts and departmental budgets should not be withheld under this exemption.

The Court observed that RBI had vide its Disclosure Policy dated 30.11.2016 directed various departments not to disclose information that was directed to be given by Jayantilal N. Mistry ante & that “though we could have taken a serious view of the Respondents [RBI & other banks] continuing to violate the directions issued by this Court, we give them a last opportunity to withdraw the disclosure policy… Any further violation shall be viewed seriously by this Court”. (paras 8-10, emphasis added). It is ultimatum given to the RBI by the Apex Court for non-compliance with its order in Jayantilal N. Mistry ante.  RBI has said it will disclose the information pursuant to the top court’s hammer, as reported by dailyhunt on 27-04-2019.

Above is the law as on date regarding banking industry in the country. Let us throw some polemic light on the issue of what constitutes a “public authority” under the Act that is duty bound to disclose information to the citizens, in the light of judicial dicta. To start with, right to information emanates from the fundamental right guaranteed to citizens under Article 19(1)(a) of the Constitution of India which does not, however, explicitly grant this right inasmuch as right of privy is also not expressly mentioned in Article 21. Justice K S Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1= 2017 0 Supreme (SC) 772 (Constitutional Bench of 9 Judges).

The theory of ‘implied bar’ does not apply to RTI law which has been enacted to give full scope to this fundamental right. Even the right to privacy fades out in front of this right in larger public interest. The “public authorities” under the Act cannot claim any immunity for disclosure of a so-called third party document/information as larger public interest outweighs private commercial interest under this law. So, RBI was bound to disclose the information about third party information that was deposited with it under the BR Act by the third party (Goa Co-Operative Bank). (Reserve Bank of India v. Shri Rui Ferreira, AIR 2012 Bom 1)  

The ultimate object of the RTI law, as gleaned from its preamble & different provisions, is to achieve transparency and accountability with regard to affairs of a “public authority”, the definition of which being inclusive must be given liberal construction in order to advance objective of the Act. A body, institution or an organization, which is not a State within the meaning of Article 12 of the Constitution may still answer the definition of public authority under section 2(h) if the government holds ultimate control over its affairs & finances. (Agriculture Produces Market Committee v. Chief Information Commissioner, 2015 Supreme (Guj) 983); Sanjeev Kumar v. State of Himachal Pradesh, (2014) Supreme (HP) 954). The doctrine of deep and pervasive control based on the decisions rendered by the courts under Article 12 is not relevant for answering the question whether a body is a public authority for the purposes of the RTI Act. It is enough if it is shown that the authority is controlled by the government. (Indian Railway Welfare Organisation v. D M Gautamm, 2010 Supreme (Del) 395)

The “private bodies” directly or indirectly controlled by the government are covered under the Act. (Mulloor Rural Co-Operative Society Ltd v. State Of Kerala, (2012) Supreme (Ker) 311). The word “controlled” used in section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the government, that is, the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. (Thalappalam Ser. Coop. Bank Ltd v. State of Kerala, (2013) Supreme (SC) 943).

The word ‘substantial’, not defined in the Act, is not synonymous with ‘dominant’ or ‘majority’. It is closer to ‘material’ or ‘important’ or ‘of considerable value.’ ‘Substantially’ is closer to ‘essentially’, ‘just enough to avoid the de minimis principle’. (Ibid) Even non-government organisation that is substantially, directly or indirectly, financed by the funds of the government will fall within the definition of “public authority”.  (Principal, M. D. Sanatan Dharam Girls College, Ambala City v. State Information Commissioner, AIR 2008 P & H 101); CSEPDI v. Tamil Nadu Generation & Distribution Corporation Limited, (2015) Supreme(Mad) 1521)

Even a private college that receives financial grant from the government is covered by the definition of “public authority”. (Committee of Management, Shanti Niketan inter college v. State of UP, (2008) Supreme All 999). Funds and finances come in multiple shapes to the public authorities from the government like equity, grants and concessions. For example, a bailout package of Rs 5,000 crore by the Central Government to the IFCI is substantial financing which answers the description of a public authority under the Act.  (IFCI Ltd v. Ravinder Balwani, (2010) Supreme (Del) 570).

Where a company has been created under the rules framed by the State government which holds 49% stake in it, the government has substantial control on it and the company is “public Authority”. (Western Electricity Supply Company of Orissa Ltd v. State of Orissa, (2009) Supreme (Ori) 403). The criterion for determination of meaning of words ‘substantially financed’ is not less than 50% holding, though the company law gives significant rights even to those who own 26% of the shares in a company. (Bangalore International Airport Limited v. Karnataka Information Commission, (2010) Supreme Kar 149).

But where the majority of shares is not held by the government but by private persons and the government has power to ‘nominate’ just one director on the board of the body, it cannot be said that the government exercises any functional control over its affairs. (Agriculture Produce Market Committee v. Chief Information Commissioner, 2015 Supreme (Guj) 983 (a huge catena of case laws has been cited and discussed in this case).

It is not necessary that a public authority should have been created under a statute. It can be creation of Notification of the government. (Sri Kannikaparameshwari Co-operative Bank Ltd v. State of Karnataka, 2008 0 Supreme (Kar) 381). A bank not established under Notification of the State government with not a single director appointed by the government and all directors elected by the private share holders of the bank and the government having no substantial equity in it, cannot be a Public Authority within the meaning of the Act. (Panjabrao Deshmukh Urban Co-operative Bank Ltd v. State Information Commissioner, AIR 2009 Bom 75).

End word:

In view of the J&K Chief Information Commissioner’s order dated 24-04-2012, J&K Bank is a “public authority” within the meaning of section 2(f) of J&K RTI Act, 2009 for the following two main reasons: One, JK Bank was created pursuant to the late Maharaja’s Memorandum of 1939, Maharaja in whom all powers of legislative, executive and judicial nature were vested, ordering for the creation the JK Bank and as that Memorandum/Notification is protected under section 155 of the JK Constitution, it was creation of law. Two, three permanent directors including one as chairman-cum- CEO under the Memorandum of the Bank are directly appointed by the State Government.  

The State does not enjoy similar power with other private sector banks. It may not be out of place to mention here that. Justice Y B Nargotra dissenting with majority opinion of two other judges in Firdous Ahmad Tanki v. J&K Bank Ltd, (2006) 2 JKJ 146= (2010) 7 JKJ 488= 2006 0 Sri LJ 1 has observed that as the majority of the share holding in JK Bank is held by the State Government, [presently it is 59% plus; read GK dated 12-01-2017 (Government of J&K today announced an amount of Rs. 532 crore as additional capital infusion in two tranches during next financial year to retain its strategic equity share of 53)] it is “fully competent and powerful enough to elect all the directors” because the minority share holders group is “in no position to influence the election of directors”. Non-government directors are elected by majority vote at the time of AGM if the vacancy has arisen.

However, the operation of that order has been stayed in a writ appeal filed by the JK Bank against it before the Hon’ble High Court of JK in 2012. 

The writer is author of Inside the Vault (fiction) and six other books on law, including the two volume book on Law of Contract (Thomson Reuters Publication, 2016). He is an academician, story teller and freelance-columnist. He has contributed hundreds of narratives to multiple media channels.

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Background & implications: In post-Shah Banu general elections of India in 1989 a huge number of Muslim women voters were wood by the Congress headed by Rajiv Gandhi, after he enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 following that Supreme Court judgment. Now, BJP-RSS combination who presently rule India has found an opportune moment post-Shayara Bano case [wherein the Supreme Court on 22-08-2017 held triple divorce/Talaq arbitrary & unconstitutional] to advance their “political agenda”. The Times of India dated 31-12-2018 quoting Anand Sharma of Congress. As such, they, to gain an advantage in next general of 2019, capitalise on the issue of Triple Talaq, with an ambition to woo the Muslim women voters in those elections.

Following the Shayara Bano ruling by the Supreme Court in the ratio of 3:2 on 22-08-2017, the ruling party at Centre came out in late 2017 with a draft of the Muslim Women (Protection of Rights on Marriage) Bill which was sent then to all State Governments (except J&K) for their “urgent views”. Sending draft law to States was just a formality to be completed under the recommendations of the Sarkaria Commission.

To recall to our minds, the Bill was earlier passed on 28-12-2017 by the Lok Sabha with overwhelming majority of RSS-BJP members who had hoped that it would be passed by Raja Sabha on last day of last monsoon session of the Parliament. To refresh memories, in 2017 when the Bill was passed by Lok Sabah on 28-12-2017, two Parliamentarians from Kashmir, Farooq Abullah (NC) & Muzaffar Beigh (PDP), kept absolutely “mum” without objecting to passage of the Bill; though not-surprisingly in view of coming Assembly Elections this year, both the parties are now beating their chests. Nevertheless, Raja Sabha did not pass the 2017 Bill. So, a Fresh Bill was tabled in Lok Sabha in the present winter session of 2018 where it was passed by the Lok Sabha with overwhelming vote on 27-12-2018 & was sent to the Raja Sabha where it came up on 31-12-2018. In Raja Sabha, the ruling class did does not have required numbers to approve it, so the Opposition stalled the Bill in Raja Sabha on 31-12-2018 by moving a resolution seeking that the Bill especially its criminalising provision making Triple Talaq punishable offence be referred to a Joint Select Committee for further scrutiny. In the meanwhile, the Triple Talaq Bill of 2017 stands withdrawn along with the President’s Ordinance of 19^th September, 2018.

It may be mentioned that the draft committee was headed by Rajnath Singh, Indian HM including other ministers, namely, External Affairs Minister Sushma Swaraj, Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad and his junior in the ministry PP Chaudhary. Under the draft law, applicable to Triple Talaq only & not Talaq in general, Talaq three times in oral, written, or electronic form like SMS, email and WhatsApp, would be bad, illegal and void. Under the draft bill, husband’s Talaq in any form, spoken, in writing or by electronic means such as email, etc, giving instant Triple Talaq would attract a jail term of three years and a fine. It has been made a non-bailable cognisable offence under the Bill. The draft law empowers divorcee-Muslim woman to approach a Magistrate for seeking “subsistence allowance” for herself and minor children & also the custody of her minor children. It is clear, however, that pronouncement of three Talaqs in single utterance or sitting by husband has been made “non-bailable offence” with severe punishment.

It needs further mention that earlier last year the Bill was sent to States & opposition parties for their “urgent” comments & views. A number of amends were suggested by opposition parties & members including AIMPLB . But all those suggestions of amending the law to make it more acceptable to Muslim community have been totally rejected by the India’ ruling party (RSS-BJP). If the law was to be passed in such a hurried haste, then, what was the fun of sending the draft law to opposition parties & States for suggestions? If it was to be passed in this manner of without consulting Muslim Community whom the law pertains, it is bound to raise many eyebrows about its passing. It is indeed a “politicized law”.

By making Triple Talaq non- bailable crime in India, or criminalising Triple Talaq, the ruling class is trying to impress upon the Indian Muslim women that their “suffering” by aberrant husbands resorting to Triple Talaq will soon come to an end. It is “politically motivated strategy” of the ruling class to woo Muslim women voters, argument goes. The penal provisions in the draft law are not in good taste of Muslims in general & non-BJP ruled States.

One may rightly feel that this law is sure to be challenged in the Supreme Court for its most shameful , painful & arbitrary provision of criminalising Triple Divorce by punishing husband with three years jail term. If punishment of Muslim husband was the objective of the Law-Makers (RSS-BJP), then, where comes the good intention of rescuing the Muslim wives slapped with Triple Talaq? It blocks all re-conciliatory steps between the spouses. A husband jailed by the Court at the complaint of wife will hardly think of reconciling with her. The harsh provision will further harm the already strained relations between the spouses concerned in such a case.

 If triple divorce is to be intended to be counted one pronouncement only, reconciliatory Raj-e-Talaq, punishing husband may not be helpful in bringing about desired reconciliation. But if the purpose of proposed legislation is “gimmicky politics”, then, it will finally fail the judicial test. Such a punitive provision is not found in those Muslim countries even where reforms in law of Talaq as per the Quranic law have been introduced. There is already the Protection of Women Against domestic Violence Act, 2005 in practice in India. Obviously, mere pronouncement of Triple Talaq without added factors as envisaged under section 3 thereof will not qualify it for “domestic violence”. Hence, the ruling class’s indirect resort to CRIMINALISE TRIPLE TALAQ through new legislation. Bringing law on par with the Quranic mandate of Talaq is all together different thing, it may be noted. Here object is totally different. 

Way-out:  That said, there are certain facts as below which cannot be lost sight of while dealing with the issue of triple divorce:
(1) Triple Divorce or Talaq-e-Mugalazah has been damaging the whole superfine procedure of Islamic divorce as prescribed in the Quran.

(2) It is an innovated form of Talaq or Talaq-e-Bidai which is unanimously accepted by all Sunni schools of thought. There is Ijma on its being innovation, hence, most reprehensible. Shias & Ahle Hadees do not accept it as valid form of talaq.

(2) In view of its being innovation, a clear deviation from set procedure of divorce in Islam, causing disrepute to the community & consequential suffering to the victim-Muslim-women, it has led several Muslim countries, namely, Algeria, Egypt, Jordan, Morocco, Sudan, Syria, Pakistan, Bangladesh and Yemen to abolish it & bring the law in conformity with the Quranic injunctions & Sunnah of the Prophet (pbuh).

(3) In India, the judiciary constantly from Shamim Ara Case in 2002 has had been trying to set the trend in conformity with the Quranic injunctions so that all possible measures were adopted for bringing reconciliation between the spouses before the Muslim husband pronounces Talaq and before Talaq is declared valid in the eyes of Muslim Law. As MPLB & Muslim leaders failed during these years to notice the judicial mood contrary to the practice of Triple Divorce in India, then, followed by BJP-RSS election-agenda of abrogating the practice in India, finally came the Supreme Court ruling in Shayara Banu case on 22-08-2017 that dealt a mortal blow to this practice without leaving space for MPLB to “debate & discuss” any more in this regard. 

(4) Islamic law of Talaq as prescribed in the Quran represents the modern breakdown theory of divorce but for Triple Talaq. It was emphasised by a renowned jurist of India way back in 1971. Late Krishna Iyer, ex- judge Supreme Court of India, held:
“It is a popular fallacy that a Muslim male enjoys under the Quranic Law un-bridled authority to liquidate his marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife so long as she remains faithful and obedient to him, if they (namely women) obey you, then do not seek a way against them’ (Quran IV : 34). …. in the absence of serious reasons, no man can justify a divorce, either in the eyes of religion or the law. … The Prophet was indeed never tired of expressing his abhorrence to divorce. ….. . However, the Muslim law as applied in India has taken a course contrary to the spirit of what the Holy Quran or the Holy Prophet laid down and the same misconception vitiates the law dealing with the wife’s right to divorce.”(Yusuf v. Sowramma, AIR 1971 Ker 261).
A well known Muslim scholar, Syeda Saiyidain Hameed, a former member of Indian National Commission for Women and founder of Muslim Women’s Forum had also expressed dislike in an article Times of India on 16-11-2000, page 14 about the Muslim husbands’ flagrant violation of the prescribed law of Talaq. She wrote:
“The fact of the matter is that we Muslims selectively practice whatever suits our need. We ascribe our actions to our religious sanctions and continuously harp on our religious code. But we blatantly violate the injunctions of Islam. We pronounce Talaq without following the commands pertaining to it. Thanks to the way we practice it, Islam is looked upon by the world as the most anti-gender religion. For this perception, it is we Muslims who are to be blamed. It is time we applied the corrective to our own selves and stop using religion”.

(5). Between two contradictory views among Muslim jurisprudents of Sunni School of thought about the validity of Triple Talaq, there was & is always a room left in the Sunni jurisprudence by which the problem of Triple Divorce could have been /can be solved. This way out was/is possible through the use of the doctrine of Istehsan. The MPLB, therefore, could prefer/have preferred the view against this practice with strong arguments from the Quran and the Sunnah. The preferable juristic interpretation of Istehsan is fully sanctioned by the Holy Quran:
“Those who listen to the word, and follow the best (meaning in it), those are the ones whom God guided and those are the ones endowed with understanding” (Holy Quran, XXXIX: 18-Surah-e-Zumar).
Dr. Riyaz ul Hassan Gilani has explained the rule of Istehsan as:
“When a jurist finds that relative to a certain situation, more than one and mutually inconsistent rules are derivable from the legal framework, he gives preference to the one which is supported by the strong legal arguments from the Quran and the Sunnah. This process of juristic preference is termed as Istehsan. (Reconstruction of Legal Thought in Islam (1982) 160).

The doctrine of Istehhsan, therefore, accepts the flexibility and adaptability to the Shariat. It permits the Muslims to seek the best course among many courses on a particular legal point. Given to the conflicting options of the jurists on the question of Triple Divorce, the Muslim Ulema can choose the one that has the solidarity of legal arguments from the Quran and the Sunnah or that is strengthened by the spirit of the injunctions of the Quran and the Sunnah. (See M J Aslam’s The Justification & Rationale of Muslim Divorce (2007),  page 125).

(6) The institution of divorce was totally unknown to the ancient Hindus.
“A Hindu marriage was a sacrament in the sense that a Hindu wife could never ask for divorce, or for another husband, even if her husband was a lunatic, impotent, leper, deserter, a chronic patient of venereal diseases or even a eunuch or a dead man. As regards the husband, he could always mock at this sacrament with impunity and arrogance by taking another wife into another and similar sacramental fold: and he could do so as many times as he liked…” (Dr. Paras Diwan, Modern Hindu Law (1985) 62, 65 quoting Manu Smiriti: Hindu Marriage Act, 1956 gave for the first time the right of divorce to Hindu women).

On the other hand, Muslim Law from day one recognises the institution of divorce. While husband has a direct right of divorce by following “strictest conditions” under the Quran & Sunnah, woman can get it through Qazi/civil family court. (Supra M J Aslam’s Justification & Rationale of Islamic Divorce)  But aberration of Triple Divorce has distorted the whole pristine pure picture of actual procedure of Talaq in Islam. The vested interests have been deliberately projecting this innovation of Talaq-e-Mugalazah as Only & Real Picture of Talaq in Islam (quite contrary to reality) with added-emphasis “adversely affecting poor women” in that community. Irony is that these, “pan-Hindu-nationalists”, are now displaying themselves as “messiah” of millions of socio-economically backward Indian Muslim women, rescuing them out of the “crisis”.
 

M J Aslam is Author, academic, story-teller & freelance columnist. Presently, AVP, J&K Bank.

Courtesy: https://countercurrents.org/
 

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