HDFC BANK LTD vs RAJENDER JAINA

HEARD the learned Counsel for the parties.

THE question involved is - whether the right of privacy of an individual mobile telephone subscriber can be disturbed due to telemarketing by financial institutions including the Banks or other service providers? Learned Senior Counsel, Dr. Singhvi and Mr. Kapur, appearing on behalf of the Cellular Operators Association of India (hereinafter referred to as the COAI) and Bharti-Airtel respectively, submitted that part of the order passed by the State Commission directing the COAI and Bharti-Airtel not to disclose the mobile telephone numbers of their subscribers to the banks or any other financial companies is not necessary because Airtel as well as COAI are not disclosing the mobile telephone numbers to any banks and that they would not disclose the same to any banks or financial institutions. This is a solemn statement made by the learned Counsel after obtaining proper instructions.

The next question which would require consideration is - whether financial institutions, such as, banks, may be Nationalized or Non-nationalized or Private Banks like HDFC or ICICI Banks, etc. , are entitled to disturb the privacy which is guaranteed under Article 21 of the Constitution of India through unsolicited calls for telemarketing for issuance of credit cards, loans for purchase of vehicles or for construction of houses, etc. It has also been pointed out that apart from telephonic calls, a large number of persons are receiving SMS for the same purpose and the complainant in the present case received a number of such SMS. She further submitted that on the basis of the SMS and telephone calls and at the request of an agent of the ICICI Bank, she filed an application for issuance of a credit card. After submission of the application, she was humiliated and insulted by not issuing the credit card. It is also pointed out that in spite of getting her name registered on the so-called ''do Not Call Register'', which is required to be maintained as per the Regulations issued by Telephone Regulatory Authority of India (TRAI) and is being maintained by National Informatics Centre (NIC), she is receiving such telephone calls.

AS against this, learned Counsel appearing on behalf of the banks as well as COAI submitted that: (i) On the same issue Writ Petition (Civil) No. 35/2005 is pending before the Apex Court wherein the learned Additional Solicitor General appearing on behalf of the Union of India (UOI) had made a statement on 7. 3. 2006 that UOI was taking steps for the purpose of resolving the problems of unsolicited telemarketing and he, therefore, prayed for 2 weeks time; (ii) Learned Counsel also contended that the Right of Privacy is subject to other Fundamental Rights which are guaranteed under Article 19 (1) (g) which includes Right to Information and Knowledge and, therefore, banks and other financial institutions are entitled to give such information to the public at large who are holding mobile telephones or are desirous of obtaining such information; and (iii) The original complainants, in some cases, have filed application before the Apex Court for transferring their cases before the Apex Court, which are yet to be listed.

Findings: It is to be stated that some matters are pending before the High Court. In Writ Petition No. 583/2007, on 23. 1. 2007, the High Court has stayed the operation of the impugned order passed by the State Commission subject to payment of Rs. 25,000 to the complainant. Thereafter, in a connected Writ Petition, on 10. 9. 2007, High Court has passed an order to the following effect: "this order would not however be interpreted to authorise the petitioner bank to continue making unsolicited marketing calls to the respondent claimant or to other customers against which the Commission has issued a prohibitory order. It is further made clear that in case such calls are made to the respondent or to any other customer, the affected party shall be free to seek appropriate redress in appropriate proceedings before the State Commission. "

IN our view, on the basis of the statement made by the learned Counsel for the COAI and Bharti-Airtel, it is directed that they shall not disclose the names and numbers of their subscribers to the banks/financial institutions or insurance companies, etc. However, learned Counsel for Bharti-Airtel submitted that till today they have not disclosed any names or numbers of their subscribers to any of such parties. However, in the Application for Impleadment filed by Bharti-Airtel, it has been stated that: "it is first submitted the Cellular Operators do not share/exchange subscriber information with other companies nor they have entered into any arrangement with banks, financial institutions to pass on details of their subscribers for financial benefits. The information is provided only to statutory/governmental bodies like Dot, Security Agencies, Courts, etc. , as required/necessitated by law, Government orders, judicial proceedings, etc. This information is also provided by Cellular Operators to their associates, for their own business purposes, for day-to-day operations like dispatch of bills, collection of payments, etc. However, in these cases, this information is shared under a confidentiality clause. "

IN view of the aforesaid statement, the Cellular Operators shall direct their associates/agents not to disclose such information to any other agencies including the banks, financial institutions and insurance companies.

THE next question for consideration is - whether the regulation framed by TRAI for maintaining "do Not Call Register" causes nuisance to the mobile telephone subscribers? It is the contention of the learned Counsel for the complainant/consumers that ''do not Call Register'' is in the negative form and mobile telephone operators in this country are not so expert who would go and register themselves in the said Register, which is maintained by NIC. It is also pointed out that despite registration, unsolicited calls are received by a number of persons at odd hours, i. e. , by the Advocates during Court hours when they are arguing or by persons while attending conferences. It is contended that instead of maintaining the ''do not Call Register'', there should be a ''do Call Register''. It is also pointed out that on occasions the person who is calling on behalf of the bank/financial institutions, do not disclose his/her identity or telephone number from which the call is being made.

All these questions, including the contention that Fundamental Right of Privacy under Article 21 is subject to Freedoms under Article 19 of the Constitution, require consideration.

LEARNED Counsel for both the parties submitted that view of TRAI be called for so as to assist this Commission. In this view of the matter and on the basis of the aforesaid submissions, Notice to the Secretary, TRAI returnable on 8th April, 2008, for responding to the contentions raised by the parties and also to express views as to why ''do Call Register'' should not be maintained instead of ''do not Call Register''. Till further orders, interim order passed by this Commission shall continue. Ordered accordingly.