Important Point—Publication of photograph of defaulter of loan is not illegal.

Rajesh H. Shukla, J.

1. The issue involved in this group of petitions is with regard to the powers of the bank in exercise of statutory powers under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'SARFAESI Act') to

publish the name with photograph of the borrower who has been a defaulter in repayment of the outstanding dues of the bank.

2. It has many facets as canvassed by the respective counsels appearing for the petitioners-original borrowers, inter alia, that the banks have no power to publish photograph and they have referred to the provisions of SARFAESI Act read with the Security Interest (Enforcement) Rules, 2002 (for short 'the Rules') to contend that it only refers to the procedure with regard to issuance of notice before exercising the powers for possession and sale of the secured assets. It is also contended that since the provisions of the SARFAEI Act or the rules do not expressly provide for publication of photograph, it cannot be read that the bank can resort to such publication of photograph which cause prejudice to the reputation of the borrowers. It is also contended that it has to be considered in light of Art. 21 which refers to the Right to Life.

3. The learned counsels have, referring to the right to life under Art. 21, emphasised that it encompasses right to live with dignity and therefore the reputation or dignity of the borrower who has defaulted in repayment cannot be prejudiced. The learned counsels have therefore pointedly referred to these provisions including some guidelines by the bank and alternatively it has also been argued that even if the power is assumed, it cannot have any unfettered power or discretion and therefore the guideline known as the Bank Codes and the Standards Board of India refers to the standards which include the privacy and confidentiality of the borrower as a customer. Therefore, it has also been contended that the bank could not disclose or publish the photograph in view of such guidelines with regard to privacy and confidentiality as they cannot cause any harm to the reputation of the borrower by publishing information and the photograph of the borrower. It was emphasised that as it has been specifically stated in this Code that "your privacy would be respected" would not justify any such publication of the photograph. The learned counsels have tried to emphasise that even if it is assumed for the sake of argument that there is a power, still, it is subject to some mechanism or guideline and as there is no detailed guideline with regard to the same by RBI, the photograph could not be permitted to be published causing harm to the reputation of the borrower. The learned counsels have submitted that merely because the person may have committed a default in repayment he is not necessarily a person without reputation. In support of these submissions, they have referred to and relied upon the judgments of the Hon'ble Apex Court reported in AIR 1996 SC 2124 in the case of State of Manipur v. Thingujam Brojen Meetei, (1996) 11 SCC 399 in the case of Om Prakash Gargi v. State of Punjab and ors., (1985) 2 SCC 412 in the case of Chief of Army Staff and ors. v. Major Dharam Pal Kukrety and (2009) 9 SCC 447 in the case of Y. Satyanarayan Reddy v. Mandal Revenue Officer, Andhra Pradesh and the judgment reported in 2014(1) DRTC 93 (Ker).

4. Per contra, the learned counsels appearing for the banks contended that there is no right, much less any fundamental right. It was submitted that the publication of such photograph along with the notice is in exercise of statutory right as provided under the provisions of SARFAESI Act. They have pointedly referred to the notice under sec. 13(2) of SARFAESI Act read with the Rules and submitted that it clearly provides for taking action for recovery of the dues. Merely because it is not expressly stated about publication of notice with photograph it does not necessarily mean t