Mr.K.J.Doraisamy v. The Assistant General Manager

3. Contending that the publication of his photograph andthe photograph of the surety would be violative of Article 21 of theConstitution, the petitioner has filed the above writ petition,seeking a Writ of Mandamus, directing the respondents to forbear frompublishing the photographs in any Newspapers or Magazines. The Writpetition was admitted on 15.6.2006 and an interim direction wasissued to the respondents not to publish the photographs in anyNewspapers or Magazines. The Bank had come up with a petition tovacate the said interim direction and by consent of parties, the writpetition itself was taken for final disposal.4. I have heard Mr.Amalaraj S.Penikilapatti, learnedcounsel appearing for the petitioner and Mr.K.Sankaran, learnedcounsel appearing for the respondents.5. In the background of an increasing trend among borrowersto avail loans and commit default and later bargain with the Banksand Financial Institutions for the waiver of a portion of theinterest and a portion of the principal if possible, the Banks andFinancial Institutions were compelled to device innovative methods tosecure their interest and also to recover their dues. Some statisticsfurnished in the Statement of Objects and Reasons to the Recovery ofDebts Due to Banks and Financial Institutions Act, 1993, were mindboggling as seen from the following extract:-"Whereas on 30th September, 1990 more than15 lakhs of cases filed by the Public SectorBanks and about 304 cases filed by the FinancialInstitutions were pending in various Courts,recovery of debts involved more than Rs.5,622/-crores in dues of Public Sector Banks and aboutRs.391/- crores of dues of the FinancialInstitutions. The locking up of such huge amountof public money in litigation prevents properutilisation and recycling of the funds for thedevelopment of the country."6. Even after the enactment of Act No.51 of 1993 and theamendment to the same by Amending Act 1 of 2000, it was felt that thesystem could not keep pace with change in time. Therefore, with aview to regulate the securitisation and reconstruction of financialassets and enforcement of security interest, the Parliament enactedthe Securitisation and Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002. In the Statement ofObjects and Reasons to the said Act, the Law Makers took note of thefact that the Banking and Financial Sector in our country do not havea level playing field as compared to other participants in theFinancial Markets in the World and that our existing legal frame workrelating to commercial transactions has not kept pace with thechanging commercial practices and financial sector reforms.Therefore, obviously with a view to keep pace with the changingcommercial practices and financial sector reforms, the Banks appear https://hcservices.ecourts.gov.in/hcservices/ to be adopting new techniques, one of which is the issue on handviz., a threat to publish photograph of the defaulters in Newspapers.7. The right of the Bank to adopt any lawful method for therecovery of its dues, including the publication of the photograph ofthe defaulter has come directly into conflict with the right toprivacy and dignity of the borrower, which has now come to berecognised, to some extent, as part of the right to life guaranteedunder Article 21 of the Constitution. It is this tension between theright of the Bank and the right to privacy, that is sought to beresolved in this writ petition.8. The Universal Declaration of Human Rights, 1948 assertedin its preamble that "recognition of the human dignity and of theequal and in alienable rights of all members of the human family isthe foundation of freedom, justice and peace in the World". Article17 of the International Covenant on Civil and Political Rights, 1966,ratified by India reads as follows:-"(1) No one shall be subject to arbitrary orunlawful interference with his privacy, family,human or correspondence, nor to lawful attacks onhis honour and reputation.(2) Everyone has the right to the protectionof the law against such interference or attacks."9. Though International Human Rights norms or InternationalConventions cannot be effectuated by Courts, the principles containedtherein have been imported into the Fundamental Rights guaranteedunder the Constitution, whenever they fell for interpretation.Drawing inspiration from Article-11 of International Covenant onCivil and Political Rights, 1966, the Supreme Court held in JollyGeorge Varghese vs. The Bank of Cochin (AIR 1980 SC 470) that "themarch of civilisation has been a story of progressive subordinationof property rights to personal freedom". Though in the earliestdecision in M.P.Sharma vs. Satish Chandra (AIR 1954 SC 300), theSupreme Court held that there is no justification to import the rightto privacy into our Constitution by a process of strainedconstruction, analogous to American Fourth Amendment, it was for thefirst time in the year 1963 that the right to privacy was recognisedas part of the right to life under Article 21 of the Constitution, inthe minority view expressed by Justice Subba Rao in Kharak Singh vs.State of U.P. (AIR 1963 SC 1295). Though the majority view wasotherwise, Justice Subba Rao held that the concept of liberty inArticle-21 was comprehensive enough to include privacy and that aperson's house, where he lives with his family is his "castle" andthat nothing is more deleterious to a man's physical happiness andhealth than a calculated interference with his privacy. The followingextract from the minority view expressed by Justice Subba Rao andJustice Shah in the said judgment, laid the foundation for thedevelopment of the Law relating to the right to privacy:- https://hcservices.ecourts.gov.in/hcservices/ "The Scientific methods used to condition aman's mind are in a real sense physicalrestraints, for they engender physical fearchannelling one's actions through anticipated andexpected grooves. So also the creation ofconditions which necessarily engender inhibitionsand fear complexes can be described as physicalrestraints. Further, the right to personal libertytakes in not only a right to be free fromrestrictions placed on his movements, but alsofree from encroachments on his private life."10. The right to privacy came into focus in a much morepronounced way in Govind vs. State of M.P. And Others (1975 (2) SCC148). Recognising that the right to privacy is not explicit in ourConstitution, the Supreme Court held in paragraph-23 of the saidjudgment as follows:-"23. Individual autonomy, perhaps thecentral concern of any system of limitedGovernment, is protected in part under ourConstitution by explicit Constitutionalguarantees. "In the application of theConstitution our contemplation cannot only beof what has been but what may be". Time workschanges and brings into existence newconditions. Subtler and far-reaching means ofinvading privacy will make it possible to beheard in the street what is whispered in thecloset. Yet, too broad a definition of privacyraises serious question about the propriety ofjudicial reliance on a right that is notexplicit in the Constitution. Of course,privacy primarily concerns the individual. Ittherefore relates to and overlaps with theconcept of liberty. The most serious advocateof privacy must confess that there are seriousproblems of defining the essence and scope ofthe right. Privacy interest in autonomy mustalso be placed in the context of other rightsand values".11. After holding that the right to privacy must encompassand protect the personal intimacies of the home, family, marriage,mother hood, procreation and child rearing, the Supreme Court went onto hold in the same judgment that a claimed right must be aFundamental Right implicit in the concept of ordered liberty. Inparagraphs 25 and 27, the Supreme Court expounded the theory further,on the following lines:"25. Rights and freedoms of citizens are setforth in the Constitution in order to guaranteethat the individual, his personality and those https://hcservices.ecourts.gov.in/hcservices/ things stamped with his personality shall be freefrom official interference except where areasonable basis for intrusion exists. "Libertyagainst Government", a phrase coined by ProfessorCorwin expresses this idea forcefully. In thissense, many of the Fundamental Rights of Citizenscan be described as contributing to the right toprivacy.""27. There are two possible theories forprotecting privacy of home. The first is thatactivities in the home harms others only to theextent that they cause offence resulting from themere thought that individuals might be engagingin such activities and that such 'harm' is notconstitutionally protectible by the State. Thesecond is that individuals need a place ofsanctuary where they can be free from societalcontrol. The importance of such a sanctuary isthat individuals can drop the mask, desist for awhile from projecting on the World the image theywant to be accepted themselves, an image that mayreflect the values of their peers rather than therealities of their natures."12. Highlighting the importance of the right guaranteedunder Article 21, Justice V.R.Krishna Iyer, in his separate butconcurring judgment in Maneka Gandhi vs. Union of India ((1978) 1 SCC248)) held as follows:-"Life is a terrestrial opportunity forunfolding personality, rising of higher states,moving to fresh woods and reaching out toreality which makes our earthly journey a truefulfillment - not a tale told by an idiot fullof sound and fury signifying nothing, but a finefrenzy rolling between heaven and earth. Thespirit of man is at the root of Article 21.Absent liberty, other freedoms are frozen."13. The right to life was held to be inclusive of the rightto live with human dignity, in Francis Coralie Mullin vs. TheAdministrator, Union Territory of Delhi (AIR 1981 SC 746). Inparagraph-6 of the said judgment, the Supreme Court held that "theright to life enshrined in Article-21 cannot be restricted to mereanimal existence and that it means something much more than justphysical survival."In paragraph-7, the Supreme Court went on to holdas follows:-"7. But the question which arises is whetherthe right to life is limited only to protectionof limb or faculty or does it go further andembrace something more. We think that the rightto life includes the right to live with human https://hcservices.ecourts.gov.in/hcservices/ dignity and all that goes along with it, namely,the bare necessities of life such as adequatenutrition, clothing and shelter over the head andfacilities for reading, writing and expressingoneself in diverse forms, freely moving about andmixing and commingling with fellow human beings.Of course, the magnitude and content of thecomponents of this right would depend upon theextent of the economic development of thecountry, but it must, in any view of the matter,include the right to the basic necessities oflife and also the right to carry on suchfunctions and activities as constitute the bareminimum expression of the human-self. Every actwhich offends against or impairs human dignitywould constitute deprivation pro tanto of thisright to live and it would have to be inaccordance with reasonable, fair and justprocedure established by law which stands thetest of other fundamental rights."14. R.Rajagopal vs. State of Tamil Nadu (1994 (6) SCC 632)is a turning point in the history of the development of the law ofprivacy in India. The question concerning the freedom of the pressvis-a-vis the right to privacy was examined by the Supreme Court atlength in the said case. Dealing with the origin of the said right,the Supreme Court held in paragraph-9 as follows:-"9. The right to privacy as an independentand distinctive concept originated in the fieldof Tort law, under which a new cause of actionfor damages resulting from unlawful invasion ofprivacy was recognised. This right has twoaspects which are but two faces of the samecoin –- (1) the general law of privacy whichaffords a tort action for damages resultingfrom an unlawful invasion of privacy and (2)the constitutional recognition given to theright to privacy which protects personalprivacy against unlawful governmental invasion.The first aspect of this right must be said tohave been violated where, for example, aperson's name or likeness is used, without hisconsent, for advertising –- or non-advertising–- purposes or for that matter, his life storyis written –- whether laudatory or otherwise -–and published without his consent as explainedhereinafter. In recent times, however, thisright has acquired a constitutional status. Weshall proceed to explain how? Right to privacyis not enumerated as a fundamental right in ourConstitution but has been inferred from Article21." https://hcservices.ecourts.gov.in/hcservices/

15. After an elaborate discussion of the American,Australian and English Case Law, the Supreme Court summarised theprinciples flowing from the discussion, in paragraph-26 as follows:-"26. We may now summarise the broadprinciples flowing from the above discussion:(1) The right to privacy is implicit inthe right to life and liberty guaranteed to thecitizens of this country by Article 21. It is a"right to be let alone". A citizen has a rightto safeguard the privacy of his own, hisfamily, marriage, procreation, motherhood,child-bearing and education among othermatters. None can publish anything concerningthe above matters without his consent -–whether truthful or otherwise and whetherlaudatory or critical. If he does so, he wouldbe violating the right to privacy of the personconcerned and would be liable in an action fordamages. Position may, however, be different,if a person voluntarily thrusts himself intocontroversy or voluntarily invites or raises acontroversy.(2) The rule aforesaid is subject to theexception, that any publication concerning theaforesaid aspects becomes unobjectionable ifsuch publication is based upon public recordsincluding Court records. This is for the reasonthat once a matter becomes a matter of publicrecord, the right to privacy no longer subsistsand it becomes a legitimate subject for commentby press and media among others. We are,however, of the opinion that in the interestsof decency (Article 19(2)) an exception must becarved out to this rule, viz., a female who isthe victim of a sexual assault, kidnap,abduction or a like offence should not furtherbe subjected to the indignity of her name andthe incident being publicised in press/media.(3) There is yet another exception to therule in (1) above –- indeed, this is not anexception but an independent rule. In the caseof public officials, it is obvious, right toprivacy, or for that matter, the remedy ofaction for damages is simply not available withrespect to their acts and conduct relevant tothe discharge of their official duties. This isso even where the publication is based uponfacts and statements which are not true, unlessthe official establishes that the publication https://hcservices.ecourts.gov.in/hcservices/ was made (by the defendant) with recklessdisregard for truth. In such a case, it wouldbe enough for the defendant (member of thepress or media) to prove that he acted after areasonable verification of the facts; it is notnecessary for him to prove that what he waswritten is true. Of course, where thepublication is proved to be false and actuatedby malice or personal animosity, the defendantwould have no defence and would be liable fordamages. It is equally obvious that in mattersnot relevant to the discharge of his duties,the public official enjoys the same protectionas any other citizen, as explained in (1) and(2) above. It needs no reiteration thatjudiciary, which is protected by the power topunish for contempt of Court and Parliament andlegislatures protected as their privileges areby Articles 105 and 104 respectively of theConstitution of India, represent exceptions tothis rule.(4) So far as the Government, localauthority and other organs and institutionsexercising governmental power are concerned,they cannot maintain a suit for damages fordefaming them.(5) Rules 3 and 4 do not, however, meanthat Official Secrets Act, 1923, or any similarenactment or provision having the force of lawdoes not bind the press or media.(6) There is no law empowering the Stateor its officials to prohibit, or to impose aprior restraint upon the press/media."16. In People's Union for Civil Liberties vs. Union ofIndia ((1997) 1 SCC 301), relating to the tapping of telephones, theSupreme Court categorically affirmed in paragraph-17 of its judgmentthat the right to privacy is a part of the right to "life" and"personal liberty" enshrined under Article-21 of the Constitution andthat the said right cannot be curtailed "except according toprocedure established by law". At the same time, the Apex Court alsoadded a note of caution in paragraph-18 as follows:-"18. The right to privacy – by itself – hasnot been identified under the Constitution. As aconcept it may be too broad and moralistic todefine it judicially. Whether right to privacy canbe claimed or has been infringed in a given casewould depend on the facts of the said case." https://hcservices.ecourts.gov.in/hcservices/

17. Mr.'X' vs. Hospital 'Z' ((1998) 8 SCC 296)) arose outof a claim for damages made by a person against the hospital whichdisclosed the fact that the patient tested positive for HIV (+)infection, resulting in his proposed marriage being called off andthe patient being ostracised by the Community. Dealing with thecontention that the right to privacy was invaded, the Supreme Courtheld in paragraphs 27 and 28 as follows:-"27. Right of privacy may, apart fromcontract, also arise out of a particular specificrelationship which may be commercial, matrimonial,or even political. As already discussed above,doctor-patient relationship, though basicallycommercial, is, professionally, a matter ofconfidence and, therefore, doctors are morally andethically bound to maintain confidentiality. Insuch a situation, the public disclosure of eventrue private facts may amount to an invasion ofthe right of privacy which may sometimes lead tothe clash of one person's "right to be let alone"with another person's "right to be informed"."28. Disclosure of even true private factshas the tendency to disturb a person'stranquillity. It may generate many complexes inhim and may even lead to psychological problems.He may, thereafter, have a disturbed life allthrough. In the face of these potentialities, andas already held by this Court in its variousdecisions referred to above, the right of privacyis an essential component of the right to lifeenvisaged by Article-21."Though certain observations made in the said judgment, were laterheld to be uncalled for by a Three Member Bench of the Supreme Courtin Mr."X" vs. Hospital "Z" ((2003) 1 SCC 500)), the law laid down onthe right to privacy was not upset.18. Thus, by judicial pronouncements, the right to privacyand dignity were held to be part of the Fundamental Right to life andpersonal liberty guaranteed under Article 21 of the Constitutionright from the decision of the Supreme Court in Kharak Singh's case.However, all the decisions referred to above did not put a stamp onsuch right as an absolute or in violable right.19. In Govind vs. State of M.P. (1975 (2) SCC 148), theSupreme Court held as follows:-"There can be no doubt that privacy –dignity claims deserve to be examined with careand to be denied only when an important countervailing interest is shown to be superior." https://hcservices.ecourts.gov.in/hcservices/ In paragraph-28 of the same judgment, the Supreme Court held asfollows:-"28. The right to privacy in any event willnecessarily have to go through a process of case-by-case development. Therefore, even assuming thatthe right to personal liberty, the right to movefreely throughout the territory of India and thefreedom of speech create an independent right ofprivacy as an emanation from them which one cancharacterize as a Fundamental Right, we do notthink that the right is absolute.20. Even in R. Rajagopal vs. State of Tamil Nadu (1994 (6)SCC 632), cited supra, the Supreme Court held that the right toprivacy has to go through a case-by-case development and that theconcepts dealt with herein are still in the process of evolution. Inparagraph-28 of the said judgment, the Supreme Court made it clearthat the impact of Article-19 (1) (a) read with Clause (2) thereof onSections 499 and 500 of the Indian Penal Code are not gone into bythe Court and that they may have to await a proper case.21. In Mr."X" vs. Hospital 'Z' (1998 (8) SCC 296) citedsupra, the Supreme Court again made it clear that the right toprivacy is not an absolute right, in the following words:-"The right however is not absolute and maybe lawfully restricted for the prevention ofcrime, disorder or protection of health or moreor less or protection of rights and freedom ofothers."22. In People's Union for Civil Liberties vs. Union ofIndia (2003 (4) SCC 399) arising out of a challenge to theConstitutional validity of the Representation of People (Amendment)Ordinance 2002, dealing with the requirement to furnish informationby a candidate contesting an Election, the Supreme Court held that"by declaration of a fact, which is a matter of public record, that acandidate was involved in various criminal cases, there is noquestion of infringement of any right of privacy". Even with regardto the declaration of assets by candidates, the Supreme Court heldthat a person having assets or income is normally required todisclose the same under the Income Tax Act or such similar FiscalLegislation. The Supreme Court in the said case placed primacy on"the right to information" first adverted to in State of U.P. vs. RajNarayan (1975 (4) SCC 428) and followed in S.P.Gupta vs. Union ofIndia (1981 (Supp) SCC 87) and amplified in Union of India vs.Association for Democratic Reforms ((2002) 5 SCC 294)).23. Dealing with the right to privacy and personal liberty,in the context of proceedings for divorce in which one of the parties https://hcservices.ecourts.gov.in/hcservices/ to the litigation was alleged to be of unsound mind and was requiredto undergo a medical examination, the Supreme Court held in Shardavs. Dharmpal ((2003) 4 SCC 493) as follows:-"The right to privacy in terms of Article 21of the Constitution is not an absolute right.""If there were a conflict between theFundamental Rights of two parties that rightwhich advances public morality would prevail."24. Again in People's Union for Civil Liberties vs. Unionof India (2004 (9) SCC 580), arising under The Prevention ofTerrorism Act, 2002, requiring any member of the public to discloseinformation to the Police, the Supreme Court held that the right toprivacy is not an absolute right and it is subservient to that ofsecurity of State.25. Once it is seen that the right to privacy is not anabsolute or inviolable right, then the next question that falls forconsideration is as to whether the Bank, with whom the customer has afiduciary relationship, is entitled to disclose or publicise theinformation in their possession, resulting in a breach of the duty ofsecrecy and confidentiality . Dealing with the duty of the Bank tomaintain secrecy qua its customer, it was held in ShankarlalAgarwalla –vs- State Bank of India (AIR 1987 Calcutta 29), asfollows:- “10. The Banker is under an obligation tosecrecy. According to Lord Halsbury's Laws ofEngland 4th Edn. Vol.3 p.72 Article 97."It is an implied term of thecontract between a banker and hiscustomer that the banker will notdivulge to third person without theexpress or implied consent of thecustomer either the state of thecustomer's account or any of histransactions with the bank or anyinformations relating to the customeracquired through the keeping of hisaccount unless the banker iscompelled to do so by order of aCourt or the circumstances give riseto a public duty of disclosure orprotection of the banker's owninterest requires it." "11. In the case reported in (1924) 1 KB461 at 472 Tournier vs. National Provincial andUnion Bank of England it was held that under fourheads the bank could disclose such informations https://hcservices.ecourts.gov.in/hcservices/ namely – (a) where the disclosure was undercompulsion by law, (b) where there was a duty tothe public to disclosure, (c) where the interestof the bank require disclosure and (d) where thedisclosure was made by express or implied consentof the customer. It was held:-"An instance of the first classis the duty to obey an order underthe Banker's Books Evidence Act. Manyinstances of the second class mightby given. They may be summed up inthe language of Lord Finlay in Weld-Blundell vs. Stephens where he speaksof cases where a higher duty than theprivate duty is involved, as where"danger to the State or public dutymay supersede the duty of the agentto his principal". A simple instanceof the third class is where a bankissues a writ claiming payment of anoverdraft stating on the face of thewrit the amount of the overdraft. Thefamiliar instance of the last classis where the customer authorises areference to his banker."26. Thus even the English law recognized that the “duty ofthe Bank to disclose information to the public” or the “interest ofthe Bank requiring disclosure” supercedes the duty of secrecy . 27. The extent of liability of a Bank to maintain secrecytowards its customers, fell for consideration in KattabommanTransport Corporation Ltd.,-vs- State Bank of Travancore (AIR 1992Kerala 351), which arose out of the dismissal of an employee of apublic sector undertaking, set aside by the High court. The Highcourt directed reinstatement with back wages subject to the conditionthat the employee was not gainfully employed anywhere. The employercame to know that the employee was actually employed in a foreigncountry and was making remittances to the Bank. Therefore theemployer requested the Bank to provide details of the remittancesmade by the employee but the same was resisted by the Bank on theground that they were under an obligation to maintain secrecy andfidelity. Analysing the law on the duty of secrecy and fidelity forthe Bank, the Division Bench of the Kerala High Court held inparagraphs 14, 15 and 17 as follows:- “14. In J. Milnes Holden's "The Law andPractice of Banking", Volume 1 (at page 67),adverting to duty to the public to disclose theauthor refers to the abovesaid cases. The authorrefers to the observations of Bankes, L.J. inTournier's case, (1924) 1 KB 461, wherein Atkin,L.J., considered that the right to disclose exists https://hcservices.ecourts.gov.in/hcservices/ "to the extent to which it is reasonablynecessary .... for protecting the bank, or personsinterested, or the public, against fraud or crime".The author also refers to the report of theCommittee on Privacy (the 'Younger Committee')(Cmnd 5012 (1972))." "15. In Tannan's "Banking Law and Practice inIndia", 18th Edition, 1989 (at page 175) thebanker's obligation to secrecy is considered andreference is made to the decision in Tournier case,(1924) 1 KB 461. The author states that there arelimitations in the rule to the extent mentioned inTournier's case."”17. From the aforesaid principles, it isclear that the banking practices and usagescustomary among bankers in India are same as inEngland. There can be gathered from Paget's Law ofBanking, J. Milnes Holden's "The Law and Practiceof Banking" and Tannan's "Banking Law and Practicein India". The principles laid down therein havetherefore been accepted in India too."28. In District Registrar –vs- Canara Bank ((2005) 1 SCC496)) the Supreme Court was concerned with a State Amendment broughtforth by the State of Andhra Pradesh, to section 73 of the IndianStamp Act, by which, a person authorised by the Collector wasempowered to search and seize any registers, books, records, papers,documents or other proceedings in the custody of a Bank for thepurpose of discovering any fraud or omission in relation to the stampduty payable on a document. The Banks themselves challenged the viresof the said amendment on the ground that it offended both the rightto privacy of their customers, as well as the duty of the Banks tomaintain secrecy and confidentiality. Tracing the origin of the rightto privacy, the Supreme court held in paragraph 18 of its judgment asfollows:- "18. The right to privacy and the power of theState to "search and seize" have been the subjectof debate in almost every democratic country wherefundamental freedoms are guaranteed. History takesus back to Semayne's case decided in 1603 where itwas laid down that "Every man's house is hiscastle." One of the most forceful expressions ofthe above maximum was that of William Pitt in theBritish Parliament in 1763. He said: "The poorestman may in his cottage bid defiance to all theforce of the Crown. It may be frail – its roof mayshake – the wind may blow through it – the stormmay enter, the rain may enter – but the King ofEngland cannot enter – all his force dare not crossthe threshold of the ruined tenement." https://hcservices.ecourts.gov.in/hcservices/ Listing out the circumstances under which such right could becurtailed, the Supreme court held in para 34 as follows:- "34. Intrusion into privacy may be by – (1)legislative provisions, (2)administrative/executive orders, and (3) judicialorders. The legislative intrusions must be testedon the touchstone of reasonableness as guaranteedby the Constitution and for that purpose the Courtcan go into the proportionality of the intrusionvis-a-vis the purpose sought to be achieved. (2) Sofar as administrative or executive action isconcerned, it has again to be reasonable havingregard to the facts and circumstances of the case.(3) As to judicial warrants, the Court must havesufficient reason to believe that the search orseizure is warranted and it must keep in mind theextent of search or seizure necessary for theprotection of the particular State interest. Inaddition, as stated earlier, common-law-recognisedrare exceptions such as where warrantless searchescould be conducted but these must be in good faith,intended to preserve evidence or intended toprevent sudden danger to person or property."29. The above discussion makes it clear that from the pointof view of the individual, his right to privacy is not absolute andfrom the point of view of the Bank, the duty to maintain secrecy issuperceded by a larger public interest as well as by the Bank’s owninterest under certain circumstances. 30. Coming to the authority of law, by which the Bank maybe allowed to publish the photograph of the defaulter, it is seenthat section 13 (4) of the SARFAESI Act authorizes the Bank to takepossession of the secured asset and sell it. The procedure for suchsale is prescribed under Rule 8 of the Security Interest(Enforcement) Rules, 2002. Sub-rule (1) of Rule 8 reads as under:- "8. Sale of immovable secured assets.--(1)Where the secured asset is an immovable property,the authorised officer shall take or cause to betaken possession, by delivering a possessionnotice prepared as nearly as possible in AppendixIV to these rules, to the borrower and by affixingthe possession notice on the outer door or at suchconspicuous place of the property."Appendix IV to the said Rules which contains the Form in which thePossession Notice is to be issued by the Bank, steers clear any doubtthat one may have. Para 2 and 3 of the Format of Notice underAppendix IV reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "The borrower having failed to repay theamount, notice is hereby given to the borrowerand the public in general that the undersignedhas taken possession of the property describedherein below in exercise of powers conferred onhim/her under Section 13(4) of the said Ordinanceread with rule 9 of the said Rules on this .....day ....... of the year........The borrower in particular and the public ingeneral is hereby cautioned not to deal with theproperty and any dealings with the property willbe subject to the charge ofthe .......................(name of theInstitution) for an amount Rs....... and interestthereon."Thus the Statutory rules themselves provide for a notice not merelyto the defaulting borrower, but also to the public in general.Therefore the threat held out by the Bank to publish the photographof the borrower and the surety, is also authorized by the statutoryrules. 31. Lastly, with the advent of the Right to InformationAct, 2005, the Bank has become obliged to disclose information to thepublic. Section 3 of the said Act entitles all citizens to a right toinformation. Section 4 (2) of the said Act provides as follows:- "(2) It shall be a constant endeavour of everypublic authority to take steps in accordancewith the requirements of clause (b) of sub-section (1) to provide as much information suomoto to the public at regular intervals throughvarious means of communications, includinginternet, so that the public have minimum resortto the use of this Act to obtain information."Public Authority is defined under section 2 (h) of the Act to include“any body owned, controlled or substantially financed”. Therefore,the respondent Bank is a Public Authority within the meaning of theAct and they owe a duty to disseminate information even suo moto. Certain exemptions are listed out under section 8 of the Right toInformation Act, 2005, two of which are of significance and they readas follows:-“8.Exemption from disclosure of information:-(1) Notwithstanding anything contained inthis Act, there shall be no obligation to give anycitizen--- https://hcservices.ecourts.gov.in/hcservices/ (a) … … … … … ..(b)… … … … … ..(c)… … … … … ..(d)… …… … … …..(e) information available to a person in hisfiduciary relationship, unless the competentauthority is satisfied that the larger publicinterest warrants the disclosure of suchinformation;(f)… … … … ..(g)… … … … ..(h)… … … … ..(i)… … … … ..(j) information which relates to personalinformation the disclosure of which has notrelationship to any public activity or interest orwhich would cause unwarranted invasion of theprivacy of the individual unless the CentralPublic Information Officer or State PublicInformation Officer or the appellate authority asthe case may be, is satisfied that the largerpublic interest justifies the disclosure of suchinformation” Thus the aforesaid provision leaves no room for any doubt that the‘Right to Privacy’ fades out in front of the ‘Right to Information’and ‘larger public interest’. 32. If borrowers could find newer and newer methods toavoid repayment of the loans, the Banks are also entitled to inventnovel methods to recover their dues. Moreover, the petitioner is notentitled to seek the relief of a writ of mandamus for the followingreasons also:-(a) It is a fundamental principle of the Law ofWrits that a Writ of Mandamus can be issued only tocompel the performance of a statutory or publicduty. But the prayer made in the present writpetition is to prevent the Bank from the performanceof its public duty.(b) What is challenged in the present writpetition, is a notice under section 13 of theSARFAESI Act. The petitioner has a statutory remedyof appeal under section 17 of the Act, withoutexhausting which, he is not entitled to invoke thewrit jurisdiction of this court. Hence I find no violation of any right or legal provision in thethreat held out by the respondent Bank to publish the photographs of https://hcservices.ecourts.gov.in/hcservices/ the borrower and the surety for the non repayment of the loan.Consequently the writ petition fails and is dismissed. No costs.Consequently, connected miscellaneous petitions are also dismissed.Svn.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Assistant General Manager, State Bank of India, Erode Branch, Erode – 638 001.2.The Chief Manager (PBD), State Bank of India, Erode Branch (0837), Erode – 638 001.1 cc to Mr.Amalaraj, Advocate, SR.567591 cc to Mr.K.Sankaran, Advocate, SR.55549.bv (co)dv/29.11.06 WP No.17761 of 2006