Judgement copy
lissing perme
(Querist) 29 April 2012
This query is : Resolved
Respected Experts,
Sincerely requesting for uploading of juegement copy of Guahati High Court in
" Hament Bharali & Others Vs State of Assam & Others",
in which Hon'able Court Upheld the examinee right to inspect the evaluated answerscript in examination.
Thanks in Advance.
lissing perme
(Querist) 29 April 2012
@M.Sheik Mohammed Ali
Sir I tried my best,but could not located that. So your kind help is urged.
Thank's for reply
ajay sethi
(Expert) 29 April 2012
we are also unable to locate this judgement
ajay sethi
(Expert) 29 April 2012
SC: Students have right to examine answer-sheetsNew Delhi, Wed Aug 10 2011, 01:09 hrs
The Supreme Court on Tuesday said examinees have a right to inspect answer-sheets under the transparency law. The evaluated answer-sheets are covered under the definition of the “information” under the Right to Information (RTI) Act, a Bench comprising Justices R V Raveendran and A K Patnaik said.
It upheld the judgment of the Calcutta High Court which had said “rejection for inspection of answer-sheets cannot be sustained”.
The apex court dismissed the appeals of Central Board of Secondary Education (CBSE), West Bengal Board of Secondary Education, West Bengal Council for Higher Education, University of Calcutta, Institute of Chartered Accountants of India and West Bengal Central School Service Commission which had challenged the February 5, 2009 judgment.
The apex court agreed with the findings of the High Court that the examination conducting bodies do not retain the evaluated answer-sheets under any “fiduciary capacity”.
The Assam Public Service Commission and Bihar Public Service Commission had also joined in and opposed the disclosure of answer-sheets to the examinees.
The apex court rejected the contention that disclosure of answer-sheets and allowing the inspection would lead to the collapse of entire system.
It agreed with the findings of the Division Bench of the High Court which had said “we have little hesitation in holding that an assessed/evaluated answer script of an examinee writing a public examination conducted by public bodies like WBBSE, CBSE or universities, which are created by statutes, does come within the purview of ‘information’ as defined in the RTI Act”.
ajay sethi
(Expert) 29 April 2012
Sunday, September 25, 2011
Supreme Court allows disclosure of answersheets under Right to Information Act,2005
In a recent landmark judgement, the Supreme Court allowed disclosure of the answer-sheets to the examinee, under Right to Information (RTI) Act.
The bench comprising Hon’ble Mr Justice RV Raveendran and Hon’ble Mr Justice AK Patnaik dismissed the petitions filed by different public authorities and affirmed the judgement of Hon’ble Calcutta High Court allowing the disclosure of answer-sheets. The case was filed by the Central Board of Secondary Education, West Bengal Board of Secondary Education, West Bengal Council for Higher Education, University of Calcutta, Institute of Chartered Accountants of India, West Bengal Central School Service Commission and Assam Public Service Commission, challenging the common order and judgement dated 05/02/2009 passed by the division bench of the Calcutta High Court.
Human Rights Law Network (HRLN) has filed an intervention application on behalf of the applicants – Mazdoor Kisaan Shakti Sangathan (MKSS) and Join Operation for Social Help (JOSH) on 30.04.2010. Mr Divya Jyoti Jaipuriar, Advocate from HRLN argued the case successfully for MKSS and JOSH.
On 14.08.2007, one Mr Pritam Rooz had filed an application under Right to Information Act seeking for copies of his answer-sheets from the Calcutta University. The varsity informed him that as per university policy, the same cannot be disclosed. Rooz then approached the Calcutta High Court. In a detailed order dated 28.03.2008, Hon’ble Justice Mr Sanjib Banerjee allowed the petition filed by Pritam Rooz and directed the University of Calcutta to disclose the answer-sheets.
The order was challenged before the division bench of the Hon’ble Calcutta High Court by the University of Calcutta. The CBSE also approached the division bench of the Calcutta High Court against another order of the single bench of thesame court allowing disclosure of the answer-sheet. While dismissing the appeals filed by these institutions, the division bench of the Calcutta High Court vide its common order and judgement dated 05.02.2009 affirmed the decision of the single bench. Against the order dated 05.02.2009, these institutions approached the Supreme Court. Subsequently, various other institutions conducting examinations like Institute of Chartered Accountants in India, Assam Public Service Commission, West Bengal Board of Secondary Education, West Bengal Council for Higher Education, West Bengal Central School Service Commission and Bihar Public Service Commission also joined in and opposed the disclosure of answer-sheets to the examiners.
It was contended by the Petitioners that the evaluated answer-sheets are not covered under the definition of the word “information”. Secondly, they argued that the evaluated answer-sheet is kept with the examination-conducting institutions under fiduciary capacity. It was also contended by these institutions that if the disclosure is allowed, the entire system will collapse.
However, Hon’ble Supreme Court dismissed all these contentions. The bench clarified that the evaluated answer-sheet is covered under the definition of “information”. It also clarified that it is the duty of the Public Authority to allow maximum disclosure as envisaged by the RTI Act.
Dealing with the issue of “fiduciary relationship”, the apex Court has explained the same in detail and held that the examination conducting bodies cannot retain the evaluated answer-sheets under any fiduciary capacity. Hence, the Court held that the exemption under section 8(1)(e) will not apply to the disclosure of answer-sheets.
The Court also dismissed the contention that the entire system will collapse once disclosure is allowed under the RTI Act. As a matter of fact, it was argued on behalf of the MKSS and JOSH that some universities allow disclosure of answer-sheets under the RTI Act and they do not face any difficulty in the process and their system has not “collapsed”.
As this judgement has dealt with various examination conducting bodies including the Public Service Commissions, universities, CBSE and other boards, professional bodies like ICAI, the directive will apply to every examination conducted by any institution in India.
Posted by DivyaJyoti Jaipuriar at 12:04:00 PM 0 comments Links to this post
Raj Kumar Makkad
(Expert) 29 April 2012
Though much details of the cited case have been used in various other cases but the original case is not seems uploaded.
Shonee Kapoor
(Expert) 02 May 2012
This case was clubbed with other cases. I am uploading the judgment.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Shonee Kapoor
(Expert) 02 May 2012
Sorry this type of file was not uploaded.
Here it is:
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. ... Appellants
Vs.
Aditya Bandopadhyay & Ors. ... Respondents
With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)
J U D G M E N T
R.V.RAVEENDRAN, J.
Leave granted. For convenience, we will refer to the facts of the first
case.
2. The first respondent appeared for the Secondary School Examination,
2008 conducted by the Central Board of Secondary Education (for short
2
`CBSE' or the `appellant'). When he got the mark sheet he was disappointed
with his marks. He thought that he had done well in the examination but his
answer-books were not properly valued and that improper valuation had
resulted in low marks. Therefore he made an application for inspection and
re-evaluation of his answer-books. CBSE rejected the said request by letter
dated 12.7.2008. The reasons for rejection were:
(i) The information sought was exempted under Section 8(1)(e) of RTI
Act since CBSE shared fiduciary relationship with its evaluators and
maintain confidentiality of both manner and method of evaluation.
(ii) The Examination Bye-laws of the Board provided that no candidate
shall claim or is entitled to re-evaluation of his answers or disclosure
or inspection of answer book(s) or other documents.
(iii) The larger public interest does not warrant the disclosure of such
information sought.
(iv) The Central Information Commission, by its order dated 23.4.2007 in
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such
disclosure."
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008
before the Calcutta High Court and sought the following reliefs : (a) for a
declaration that the action of CBSE in excluding the provision of re-
evaluation of answer-sheets, in regard to the examinations held by it was
illegal, unreasonable and violative of the provisions of the Constitution of
3
India; (b) for a direction to CBSE to appoint an independent examiner for re-
evaluating his answer-books and issue a fresh marks card on the basis of re-
evaluation; (c) for a direction to CBSE to produce his answer-books in
regard to the 2008 Secondary School Examination so that they could be
properly reviewed and fresh marks card can be issued with re-evaluation
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and
for a direction to produce the answer-books into court for inspection by the
first respondent. The respondent contended that section 8(1)(e) of Right to
Information Act, 2005 (`RTI Act' for short) relied upon by CBSE was not
applicable and relied upon the provisions of the RTI Act to claim inspection.
4. CBSE resisted the petition. It contended that as per its Bye-laws, re-
evaluation and inspection of answer-books were impermissible and what
was permissible was only verification of marks. They relied upon the CBSE
Examination Bye-law No.61, relevant portions of which are extracted
below:
"61. Verification of marks obtained by a Candidate in a subject
(i) A candidate who has appeared at an examination conducted by the
Board may apply to the concerned Regional Officer of the Board for
verification of marks in any particular subject. The verification will be
restricted to checking whether all the answer's have been evaluated and
that there has been no mistake in the totalling of marks for each question
in that subject and that the marks have been transferred correctly on the
title page of the answer book and to the award list and whether the
4
supplementary answer book(s) attached with the answer book mentioned
by the candidate are intact. No revaluation of the answer book or
supplementary answer book(s) shall be done.
(ii) Such an application must be made by the candidate within 21 days
from the date of the declaration of result for Main Examination and 15
days for Compartment Examination.
(iii) All such applications must be accompanied by payment of fee as
prescribed by the Board from time to time.
(iv) No candidate shall claim, or be entitled to, revaluation of his/her
answers or disclosure or inspection of the answer book(s) or other
documents.
xxxx
(vi) In no case the verification of marks shall be done in the presence of
the candidate or anyone else on his/her behalf, nor will the answer books
be shown to him/her or his/her representative.
(vii) Verification of marks obtained by a candidate will be done by the
officials appointed by or with the approval of the Chairman.
(viii) The marks, on verification will be revised upward or downward, as
per the actual marks obtained by the candidate in his/her answer book.
xxxx
62. Maintenance of Answer Books
The answer books shall be maintained for a period of three months and
shall thereafter be disposed of in the manner as decided by the Chairman
from time to time."
(emphasis supplied)
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated
schools across the country appear in class X and class XII examinations
conducted by it and this generates as many as 60 to 65 lakhs of answer-
books; that as per Examination Bye-law No.62, it maintains the answer
5
books only for a period of three months after which they are disposed of. It
was submitted that if candidates were to be permitted to seek re-evaluation
of answer books or inspection thereof, it will create confusion and chaos,
subjecting its elaborate system of examinations to delay and disarray. It was
stated that apart from class X and class XII examinations, CBSE also
conducts several other examinations (including the All India Pre-Medical
Test, All India Engineering Entrance Examination and Jawahar Navodaya
Vidyalaya's Selection Test). If CBSE was required to re-evaluate the
answer-books or grant inspection of answer-books or grant certified copies
thereof, it would interfere with its effective and efficient functioning, and
will also require huge additional staff and infrastructure. It was submitted
that the entire examination system and evaluation by CBSE is done in a
scientific and systemic manner designed to ensure and safeguard the high
academic standards and at each level utmost care was taken to achieve the
object of excellence, keeping in view the interests of the students. CBSE
referred to the following elaborate procedure for evaluation adopted by it :
"The examination papers are set by the teachers with at least 20 years of
teaching experience and proven integrity. Paper setters are normally
appointed from amongst academicians recommended by then Committee
of courses of the Board. Every paper setter is asked to set more than one
set of question papers which are moderated by a team of moderators who
are appointed from the academicians of the University or from amongst
the Senior Principals. The function of the moderation team is to ensure
correctness and consistency of different sets of question papers with the
curriculum and to assess the difficulty level to cater to the students of
6
different schools in different categories. After assessing the papers from
every point of view, the team of moderators gives a declaration whether
the whole syllabus is covered by a set of question papers, whether the
distribution of difficulty level of all the sets is parallel and various other
aspects to ensure uniform standard. The Board also issues detailed
instructions for the guidance of the moderators in order to ensure uniform
criteria for assessment.
The evaluation system on the whole is well organized and fool-proof. All
the candidates are examined through question papers set by the same
paper setters. Their answer books are marked with fictitious roll numbers
so as to conceal their identity. The work of allotment of fictitious roll
number is carried out by a team working under a Chief Secrecy Officer
having full autonomy. The Chief Secrecy Officer and his team of
assistants are academicians drawn from the Universities and other
autonomous educational bodies not connected with the Board. The Chief
Secrecy Officer himself is usually a person of the rank of a University
professor. No official of the Board at the Central or Regional level is
associated with him in performance of the task assigned to him. The codes
of fictitious roll numbers and their sequences are generated by the Chief
Secrecy Officer himself on the basis of mathematical formula which
randomize the real roll numbers and are known only to him and his team.
This ensures complete secrecy about the identification of the answer book
so much so, that even the Chairman, of the Board and the Controller of
Examination of the Board do not have any information regarding the
fictitious roll numbers granted by the Chief Secrecy Officer and their real
counterpart numbers.
At the evaluation stage, the Board ensures complete fairness and
uniformity by providing a marking scheme which is uniformity applicable
to all the examiners in order to eliminate the chances of subjectivity.
These marking schemes are jointly prepared at the Headquarters of the
Board in Delhi by the Subject Experts of all the regions. The main purpose
of the marking scheme is to maintain uniformity in the evaluation of the
answer books.
The evaluation of the answer books in all major subjects including
mathematics, science subjects is done in centralized "on the spot"
evaluation centers where the examiners get answer book in interrupted
serial orders. Also, the answer books are jumbled together as a result of
which the examiners, say in Bangalore may be marking the answer book
of a candidate who had his examination in Pondicherry, Goa, Andaman
and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka
itself but he has no way of knowing exactly which answer book he is
examining. The answer books having been marked with fictitious roll
numbers give no clue to any examiner about the state or territory it
7
belongs to. It cannot give any clue about the candidate's school or centre
of examination. The examiner cannot have any inclination to do any
favour to a candidate because he is unable to decodify his roll number or
to know as to which school, place or state or territory he belongs to.
The examiners check all the questions in the papers thoroughly under the
supervision of head examiner and award marks to the sub parts
individually not collectively. They take full precautions and due attention
is given while assessing an answer book to do justice to the candidate. Re-
evaluation is administratively impossible to be allowed in a Board where
lakhs of students take examination in multiple subjects.
There are strict instructions to the additional head examiners not to allow
any shoddy work in evaluation and not to issue more than 20-25 answer
books for evaluation to an examiner on a single day. The examiners are
practicing teachers who guard the interest of the candidates. There is no
ground to believe that they do unjust marking and deny the candidates
their due. It is true that in some cases totaling errors have been detected at
the stage of scrutiny or verification of marks. In order to minimize such
errors and to further strengthen and to improve its system, from 1993
checking of totals and other aspects of the answers has been trebled in
order to detect and eliminate all lurking errors.
The results of all the candidates are reviewed by the Results Committee
functioning at the Head Quarters. The Regional Officers are not the
number of this Committee. This Committee reviews the results of all the
regions and in case it decides to standardize the results in view of the
results shown by the regions over the previous years, it adopts a uniform
policy for the candidates of all the regions. No special policy is adopted
for any region, unless there are some special reasons. This practice of
awarding standardized marks in order to moderate the overall results is a
practice common to most of the Boards of Secondary Education. The
exact number of marks awarded for the purpose of standardization in
different subjects varies from year to year. The system is extremely
impersonalized and has no room for collusion infringement. It is in a word
a scientific system."
CBSE submitted that the procedure evolved and adopted by it ensures
fairness and accuracy in evaluation of answer-books and made the entire
process as foolproof as possible and therefore denial of re-evaluation or
8
inspection or grant of copies cannot be considered to be denial of fair play or
unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed of the said
writ petition along with the connected writ petitions (relied by West Bengal
Board of Secondary Education and others) by a common judgment dated
5.2.2009. The High Court held that the evaluated answer-books of an
examinee writing a public examination conducted by statutory bodies like
CBSE or any University or Board of Secondary Education, being a
`document, manuscript record, and opinion' fell within the definition of
"information" as defined in section 2(f) of the RTI Act. It held that the
provisions of the RTI Act should be interpreted in a manner which would
lead towards dissemination of information rather than withholding the same;
and in view of the right to information, the examining bodies were bound to
provide inspection of evaluated answer books to the examinees.
Consequently it directed CBSE to grant inspection of the answer books to
the examinees who sought information. The High Court however rejected
the prayer made by the examinees for re-evaluation of the answer-books, as
that was not a relief that was available under RTI Act. RTI Act only
provided a right to access information, but not for any consequential reliefs.
9
Feeling aggrieved by the direction to grant inspection, CBSE has filed this
appeal by special leave.
6. Before us the CBSE contended that the High Court erred in (i)
directing CBSE to permit inspection of the evaluated answer books, as that
would amount to requiring CBSE to disobey its Examination Bye-law 61(4),
which provided that no candidate shall claim or be entitled to re-evaluation
of answer books or disclosure/inspection of answer books; (ii) holding that
Bye-law 61(4) was not binding upon the examinees, in view of the
overriding effect of the provisions of the RTI Act, even though the validity
of that bye-law had not been challenged; (iii) not following the decisions of
this court in Maharashtra State Board of Secondary Education vs. Paritosh
B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar
PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan
P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC
603] and Secretary, West Bengal Council of Higher Secondary Education
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a
right to inspect his answer book under section 3 of the RTI Act and the
examining bodies like CBSE were not exempted from disclosure of
information under section 8(1)(e) of the RTI Act. The appellants contended
that they were holding the "information" (in this case, the evaluated answer
10
books) in a fiduciary relationship and therefore exempted under section
8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission contended
that the object of the RTI Act is to ensure maximum disclosure of
information and minimum exemptions from disclosure; that an examining
body does not hold the evaluated answer books, in any fiduciary relationship
either with the student or the examiner; and that the information sought by
any examinee by way of inspection of his answer books, will not fall under
any of the exempted categories of information enumerated in section 8 of the
RTI Act. It was submitted that an examining body being a public authority
holding the `information', that is, the evaluated answer-books, and the
inspection of answer-books sought by the examinee being exercise of `right
to information' as defined under the Act, the examinee as a citizen has the
right to inspect the answer-books and take certified copies thereof. It was
also submitted that having regard to section 22 of the RTI Act, the
provisions of the said Act will have effect notwithstanding anything
inconsistent in any law and will prevail over any rule, regulation or bye law
of the examining body barring or prohibiting inspection of answer books.
11
8. On the contentions urged, the following questions arise for our
consideration :
(i) Whether an examinee's right to information under the RTI Act
includes a right to inspect his evaluated answer books in a public
examination or taking certified copies thereof?
(ii) Whether the decisions of this court in Maharashtra State Board of
Secondary Education [1984 (4) SCC 27] and other cases referred to
above, in any way affect or interfere with the right of an examinee
seeking inspection of his answer books or seeking certified copies
thereof?
(iii) Whether an examining body holds the evaluated answer books "in a
fiduciary relationship" and consequently has no obligation to give
inspection of the evaluated answer books under section 8 (1)(e) of
RTI Act?
(iv) If the examinee is entitled to inspection of the evaluated answer books
or seek certified copies thereof, whether such right is subject to any
limitations, conditions or safeguards?
Relevant Legal Provisions
9. To consider these questions, it is necessary to refer to the statement of
objects and reasons, the preamble and the relevant provisions of the RTI
12
Act. RTI Act was enacted in order to ensure smoother, greater and more
effective access to information and provide an effective framework for
effectuating the right of information recognized under article 19 of the
Constitution. The preamble to the Act declares the object sought to be
achieved by the RTI Act thus:
"An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control
of public authorities, in order to promote transparency and accountability
in the working of every public authority, the constitution of a Central
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to contain
corruption and to hold Governments and their instrumentalities
accountable to the governed;
And whereas revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
Governments, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while
preserving the paramountcy of the democratic ideal."
Chapter II of the Act containing sections 3 to 11 deals with right to
information and obligations of public authorities. Section 3 provides for
right to information and reads thus: "Subject to the provisions of this Act,
all citizens shall have the right to information." This section makes it clear
13
that the RTI Act gives a right to a citizen to only access information, but not
seek any consequential relief based on such information. Section 4 deals
with obligations of public authorities to maintain the records in the manner
provided and publish and disseminate the information in the manner
provided. Section 6 deals with requests for obtaining information. It
provides that applicant making a request for information shall not be
required to give any reason for requesting the information or any personal
details except those that may be necessary for contacting him. Section 8
deals with exemption from disclosure of information and is extracted in its
entirety:
"8. Exemption from disclosure of information -- (1) Notwithstanding
anything contained in this Act, there shall be no obligation to give any
citizen,-
(a) information, disclosure of which would
prejudicially affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State, relation with foreign
State or lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the disclosure of which
may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade
secrets or intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority is
satisfied that larger public interest warrants the disclosure of such
information;
14
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied that the larger
public interest warrants the disclosure of such information;
(f) information received in confidence from foreign
Government;
(g) information, the disclosure of which would
endanger the life or physical safety of any person or identify the source of
information or assistance given in confidence for law enforcement or
security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof,
and the material on the basis of which the decisions were taken shall be
made public after the decision has been taken, and the matter is complete,
or over:
Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has no relationship to any public activity or
interest, or which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may be,
is satisfied that the larger public interest justifies the disclosure of such
information:
Provided that the information which cannot be denied to the Parliament or
a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
Act, 1923 (19 of 1923) nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may allow access to
information, if public interest in disclosure outweighs the harm to the
protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i)
of sub-section (1), any information relating to any occurrence, event or
matter which has taken place, occurred or happened twenty years before
15
the date on which any request is made under secton 6 shall be provided to
any person making a request under that section:
Provided that where any question arises as to the date from which the said
period of twenty years has to be computed, the decision of the Central
Government shall be final, subject to the usual appeals provided for in this
Act."
(emphasis supplied)
Section 9 provides that without prejudice to the provisions of section 8, a
request for information may be rejected if such a request for providing
access would involve an infringement of copyright. Section 10 deals with
severability of exempted information and sub-section (1) thereof is extracted
below:
"(1) Where a request for access to information is rejected on the ground
that it is in relation to information which is exempt from disclosure, then,
notwithstanding anything contained in this Act, access may be provided to
that part of the record which does not contain any information which is
exempt from disclosure under this Act and which can reasonably be
severed from any part that contains exempt information."
Section 11 deals with third party information and sub-section (1) thereof is
extracted below:
"(1) Where a Central Public Information Officer or a State Public
Information Officer, as the case may be, intends to disclose any
information or record, or part thereof on a request made under this Act,
which relates to or has been supplied by a third party and has been treated
as confidential by that third party, the Central Public Information Officer
or State Public Information Officer, as the case may be, shall, within five
days from the receipt of the request, give a written notice to such third
party of the request and of the fact that the Central Public Information
Officer or State Public Information Officer, as the case may be, intends to
16
disclose the information or record, or part thereof, and invite the third
party to make a submission in writing or orally, regarding whether the
information should be disclosed, and such submission of the third party
shall be kept in view while taking a decision about disclosure of
information:
Provided that except in the case of trade or commercial secrets protected
by law, disclosure may be allowed if the public interest in disclosure
outweighs in importance any possible harm or injury to the interests of
such third party."
The definitions of information, public authority, record and right to
information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are
extracted below:
"(f) "information" means any material in any form, including records,
documents, memos, e-mails, opinions, advices, press releases, circulars,
orders, logbooks, contracts, reports, papers, samples, models, data material
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;
(h) "public authority" means any authority or body or institution of self-
government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any-
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;
17
(i) "record" includes-
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm
(whether enlarged or not); and
(d) any other material produced by a computer or any other device;
(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-
(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;
Section 22 provides for the Act to have overriding effect and is extracted
below:
"The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in the Official Secrets Act, 1923 (19 of
1923), and any other law for the time being in force or in any instrument
having effect by virtue of any law other than this Act."
10. It will also be useful to refer to a few decisions of this Court which
considered the importance and scope of the right to information. In State of
Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:
18
"In a government of responsibility like ours, where all the agents of the
public must be responsible for their conduct, there can but few secrets.
The people of this country have a right to know every public act,
everything, that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public transaction in all
its bearing. The right to know, which is derived from the concept of
freedom of speech, though not absolute, is a factor which should make one
wary, when secrecy is claimed for transactions which can, at any rate,
have no repercussion on public security."
(emphasis supplied)
In Dinesh Trivedi v. Union of India - (1997) 4 SCC 306, this Court held:
"In modern constitutional democracies, it is axiomatic that citizens have a
right to know about the affairs of the Government which, having been
elected by them, seeks to formulate sound policies of governance aimed at
their welfare. However, like all other rights, even this right has recognised
limitations; it is, by no means, absolute. ..................Implicit in this
assertion is the proposition that in transaction which have serious
repercussions on public security, secrecy can legitimately be claimed
because it would then be in the public interest that such matters are not
publicly disclosed or disseminated.
To ensure the continued participation of the people in the democratic
process, they must be kept informed of the vital decisions taken by the
Government and the basis thereof. Democracy, therefore, expects
openness and openness is a concomitant of a free society. Sunlight is the
best disinfectant. But it is equally important to be alive to the dangers that
lie ahead. It is important to realise that undue popular pressure brought to
bear on decision-makers is Government can have frightening side-effects.
If every action taken by the political or executive functionary is
transformed into a public controversy and made subject to an enquiry to
soothe popular sentiments, it will undoubtedly have a chilling effect on the
independence of the decision-maker who may find it safer not to take any
decision. It will paralyse the entire system and bring it to a grinding halt.
So we have two conflicting situations almost enigmatic and we think the
answer is to maintain a fine balance which would serve public interest."
In People's Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,
this Court held that right of information is a facet of the freedom of "speech
19
and expression" as contained in Article 19(1)(a) of the Constitution of India
and such a right is subject to any reasonable restriction in the interest of the
security of the state and subject to exemptions and exceptions.
Re : Question (i)
11. The definition of `information' in section 2(f) of the RTI Act refers to
any material in any form which includes records, documents, opinions,
papers among several other enumerated items. The term `record' is defined
in section 2(i) of the said Act as including any document, manuscript or file
among others. When a candidate participates in an examination and writes
his answers in an answer-book and submits it to the examining body for
evaluation and declaration of the result, the answer-book is a document or
record. When the answer-book is evaluated by an examiner appointed by the
examining body, the evaluated answer-book becomes a record containing
the `opinion' of the examiner. Therefore the evaluated answer-book is also
an `information' under the RTI Act.
12. Section 3 of RTI Act provides that subject to the provisions of this
Act all citizens shall have the right to information. The term `right to
information' is defined in section 2(j) as the right to information accessible
20
under the Act which is held by or under the control of any public authority.
Having regard to section 3, the citizens have the right to access to all
information held by or under the control of any public authority except those
excluded or exempted under the Act. The object of the Act is to empower
the citizens to fight against corruption and hold the Government and their
instrumentalities accountable to the citizens, by providing them access to
information regarding functioning of every public authority. Certain
safeguards have been built into the Act so that the revelation of information
will not conflict with other public interests which include efficient operation
of the governments, optimum use of limited fiscal resources and
preservation of confidential and sensitive information. The RTI Act provides
access to information held by or under the control of public authorities and
not in regard to information held by any private person. The Act provides
the following exclusions by way of exemptions and exceptions (under
sections 8, 9 and 24) in regard to information held by public authorities:
(i) Exclusion of the Act in entirety under section 24 to intelligence and
security organizations specified in the Second Schedule even though
they may be "public authorities", (except in regard to information
with reference to allegations of corruption and human rights
violations).
21
(ii) Exemption of the several categories of information enumerated in
section 8(1) of the Act which no public authority is under an
obligation to give to any citizen, notwithstanding anything contained
in the Act [however, in regard to the information exempted under
clauses (d) and (e), the competent authority, and in regard to the
information excluded under clause (j), Central Public Information
Officer/State Public Information Officer/the Appellate Authority, may
direct disclosure of information, if larger public interest warrants or
justifies the disclosure].
(iii) If any request for providing access to information involves an
infringement of a copyright subsisting in a person other than the State,
the Central/State Public Information Officer may reject the request
under section 9 of RTI Act.
Having regard to the scheme of the RTI Act, the right of the citizens to
access any information held or under the control of any public authority,
should be read in harmony with the exclusions/exemptions in the Act.
13. The examining bodies (Universities, Examination Boards, CBSC etc.)
are neither security nor intelligence organisations and therefore the
exemption under section 24 will not apply to them. The disclosure of
information with reference to answer-books does not also involve
infringement of any copyright and therefore section 9 will not apply.
22
Resultantly, unless the examining bodies are able to demonstrate that the
evaluated answer-books fall under any of the categories of exempted
`information' enumerated in clauses (a) to (j) of sub-section (1) section 8,
they will be bound to provide access to the information and any applicant
can either inspect the document/record, take notes, extracts or obtain
certified copies thereof.
14. The examining bodies contend that the evaluated answer-books are
exempted from disclosure under section 8(1)(e) of the RTI Act, as they are
`information' held in its fiduciary relationship. They fairly conceded that
evaluated answer-books will not fall under any other exemptions in sub-
section (1) of section 8. Every examinee will have the right to access his
evaluated answer-books, by either inspecting them or take certified copies
thereof, unless the evaluated answer-books are found to be exempted under
section 8(1)(e) of the RTI Act.
Re : Question (ii)
15. In Maharashtra State Board, this Court was considering whether
denial of re-evaluation of answer-books or denial of disclosure by way of
inspection of answer books, to an examinee, under Rule 104(1) and (3) of
23
the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was
violative of principles of natural justice and violative of Articles 14 and 19
of the Constitution of India. Rule 104(1) provided that no re-evaluation of
the answer books shall be done and on an application of any candidate
verification will be restricted to checking whether all the answers have been
examined and that there is no mistake in the totalling of marks for each
question in that subject and transferring marks correctly on the first cover
page of the answer book. Rule 104(3) provided that no candidate shall claim
or be entitled to re-evaluation of his answer-books or inspection of answer-
books as they were treated as confidential. This Court while upholding the
validity of Rule 104(3) held as under :
".... the "process of evaluation of answer papers or of subsequent
verification of marks" under Clause (3) of Regulation 104 does not attract
the principles of natural justice since no decision making process which
brings about adverse civil consequences to the examinees in involved. The
principles of natural justice cannot be extended beyond reasonable and
rational limits and cannot be carried to such absurd lengths as to make it
necessary that candidates who have taken a public examination should be
allowed to participate in the process of evaluation of their performances or
to verify the correctness of the evaluation made by the examiners by
themselves conducting an inspection of the answer-books and determining
whether there has been a proper and fair valuation of the answers by the
examiners."
So long as the body entrusted with the task of framing the rules or
regulations acts within the scope of the authority conferred on it, in the
sense that the rules or regulations made by it have a rational nexus with
the object and purpose of the statute, the court should not concern itself
with the wisdom or efficaciousness of such rules or regulations.... The
Legislature and its delegate are the sole repositories of the power to decide
what policy should be pursued in relation to matters covered by the Act ...
24
and there is no scope for interference by the Court unless the particular
provision impugned before it can be said to suffer from any legal
infirmity, in the sense of its being wholly beyond the scope of the
regulation making power or its being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations
imposed by the Constitution.
It was perfectly within the competence of the Board, rather it was its plain
duty, to apply its mind and decide as a matter of policy relating to the
conduct of the examination as to whether disclosure and inspection of the
answer books should be allowed to the candidates, whether and to what
extent verification of the result should be permitted after the results have
already been announced and whether any right to claim revaluation of the
answer books should be recognised or provided for. All these are
undoubtedly matters which have an intimate nexus with the objects and
purposes of the enactment and are, therefore, with in the ambit of the
general power to make regulations...."
This Court held that Regulation 104(3) cannot be held to be unreasonable
merely because in certain stray instances, errors or irregularities had gone
unnoticed even after verification of the concerned answer books according
to the existing procedure and it was only after further scrutiny made either
on orders of the court or in the wake of contentions raised in the petitions
filed before a court, that such errors or irregularities were ultimately
discovered. This court reiterated the view that "the test of reasonableness is
not applied in vacuum but in the context of life's realities" and concluded
that realistically and practically, providing all the candidates inspection of
their answer books or re-evaluation of the answer books in the presence of
the candidates would not be feasible. Dealing with the contention that every
25
student is entitled to fair play in examination and receive marks matching his
performance, this court held :
"What constitutes fair play depends upon the facts and circumstances
relating to each particular given situation. If it is found that every possible
precaution has been taken and all necessary safeguards provided to ensure
that the answer books inclusive of supplements are kept in safe custody so
as to eliminate the danger of their being tampered with and that the
evaluation is done by the examiners applying uniform standards with
checks and crosschecks at different stages and that measures for detection
of malpractice, etc. have also been effectively adopted, in such cases it
will not be correct on the part of the Courts to strike down, the provision
prohibiting revaluation on the ground that it violates the rules of fair play.
It appears that the procedure evolved by the Board for ensuring fairness
and accuracy in evaluation of the answer books has made the system as
fool proof as can be possible and is entirely satisfactory. The Board is a
very responsible body. The candidates have taken the examination with
full awareness of the provisions contained in the Regulations and in the
declaration made in the form of application for admission to the
examination they have solemnly stated that they fully agree to abide by the
regulations issued by the Board. In the circumstances, when we find that
all safeguards against errors and malpractices have been provided for,
there cannot be said to be any denial of fair play to the examinees by
reason of the prohibition against asking for revaluation.... "
This Court concluded that if inspection and verification in the presence of
the candidates, or revaluation, have to be allowed as of right, it may lead to
gross and indefinite uncertainty, particularly in regard to the relative ranking
etc. of the candidate, besides leading to utter confusion on account of the
enormity of the labour and time involved in the process. This court
concluded :
26
"... the Court should be extremely reluctant to substitute its own views as
to what is wise, prudent and proper in relation to academic matters in
preference to those formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working of educational
institutions and the departments controlling them. It will be wholly wrong
for the court to make a pedantic and purely idealistic approach to the
problems of this nature, isolated from the actual realities and grass root
problems involved in the working of the system and unmindful of the
consequences which would emanate if a purely idealistic view as opposed
to a pragmatic one were to be propounded."
16. The above principles laid down in Maharashtra State Board have
been followed and reiterated in several decisions of this Court, some of
which are referred to in para (6) above. But the principles laid down in
decisions such as Maharashtra State Board depend upon the provisions of
the rules and regulations of the examining body. If the rules and regulations
of the examining body provide for re-evaluation, inspection or disclosure of
the answer-books, then none of the principles in Maharashtra State Board or
other decisions following it, will apply or be relevant. There has been a
gradual change in trend with several examining bodies permitting inspection
and disclosure of the answer-books.
17. It is thus now well settled that a provision barring inspection or
disclosure of the answer-books or re-evaluation of the answer-books and
restricting the remedy of the candidates only to re-totalling is valid and
binding on the examinee. In the case of CBSE, the provisions barring re-
27
evaluation and inspection contained in Bye-law No.61, are akin to Rule 104
considered in Maharashtra State Board. As a consequence if an examination
is governed only by the rules and regulations of the examining body which
bar inspection, disclosure or re-evaluation, the examinee will be entitled
only for re-totalling by checking whether all the answers have been
evaluated and further checking whether there is no mistake in totaling of
marks for each question and marks have been transferred correctly to the
title (abstract) page. The position may however be different, if there is a
superior statutory right entitling the examinee, as a citizen to seek access to
the answer books, as information.
18. In these cases, the High Court has rightly denied the prayer for re-
evaluation of answer-books sought by the candidates in view of the bar
contained in the rules and regulations of the examining bodies. It is also not
a relief available under the RTI Act. Therefore the question whether re-
evaluation should be permitted or not, does not arise for our consideration.
What arises for consideration is the question whether the examinee is
entitled to inspect his evaluated answer-books or take certified copies
thereof. This right is claimed by the students, not with reference to the rules
or bye-laws of examining bodies, but under the RTI Act which enables them
28
and entitles them to have access to the answer-books as `information' and
inspect them and take certified copies thereof. Section 22 of RTI Act
provides that the provisions of the said Act will have effect, notwithstanding
anything inconsistent therewith contained in any other law for the time being
in force. Therefore the provisions of the RTI Act will prevail over the
provisions of the bye-laws/rules of the examining bodies in regard to
examinations. As a result, unless the examining body is able to demonstrate
that the answer-books fall under the exempted category of information
described in clause (e) of section 8(1) of RTI Act, the examining body will
be bound to provide access to an examinee to inspect and take copies of his
evaluated answer-books, even if such inspection or taking copies is barred
under the rules/bye-laws of the examining body governing the examinations.
Therefore, the decision of this Court in Maharashtra State Board (supra)
and the subsequent decisions following the same, will not affect or interfere
with the right of the examinee seeking inspection of answer-books or taking
certified copies thereof.
Re : Question (iii)
19. Section 8(1) enumerates the categories of information which are
exempted from disclosure under the provisions of the RTI Act. The
29
examining bodies rely upon clause (e) of section 8(1) which provides that
there shall be no obligation on any public authority to give any citizen,
information available to it in its fiduciary relationship. This exemption is
subject to the condition that if the competent authority (as defined in section
2(e) of RTI Act) is satisfied that the larger public interest warrants the
disclosure of such information, the information will have to be disclosed.
Therefore the question is whether the examining body holds the evaluated
answer-books in its fiduciary relationship.
20. The term `fiduciary' and `fiduciary relationship' refer to different
capacities and relationship, involving a common duty or obligation.
20.1) Black's Law Dictionary (7th Edition, Page 640) defines `fiduciary
relationship' thus:
"A relationship in which one person is under a duty to act for the benefit
of the other on matters within the scope of the relationship. Fiduciary
relationships - such as trustee-beneficiary, guardian-ward, agent-principal,
and attorney-client - require the highest duty of care. Fiduciary
relationships usually arise in one of four situations : (1) when one person
places trust in the faithful integrity of another, who as a result gains
superiority or influence over the first, (2) when one person assumes
control and responsibility over another, (3) when one person has a duty to
act for or give advice to another on matters falling within the scope of the
relationship, or (4) when there is a specific relationship that has
traditionally been recognized as involving fiduciary duties, as with a
lawyer and a client or a stockbroker and a customer."
30
20.2) The American Restatements (Trusts and Agency) define `fiduciary' as
one whose intention is to act for the benefit of another as to matters relevant
to the relation between them. The Corpus Juris Secundum (Vol. 36A page
381) attempts to define fiduciary thus :
"A general definition of the word which is sufficiently comprehensive to
embrace all cases cannot well be given. The term is derived from the civil,
or Roman, law. It connotes the idea of trust or confidence, contemplates
good faith, rather than legal obligation, as the basis of the transaction,
refers to the integrity, the fidelity, of the party trusted, rather than his
credit or ability, and has been held to apply to all persons who occupy a
position of peculiar confidence toward others, and to include those
informal relations which exist whenever one party trusts and relies on
another, as well as technical fiduciary relations.
The word `fiduciary,' as a noun, means one who holds a thing in trust for
another, a trustee, a person holding the character of a trustee, or a
character analogous to that of a trustee, with respect to the trust and
confidence involved in it and the scrupulous good faith and candor which
it requires; a person having the duty, created by his undertaking, to act
primarily for another's benefit in matters connected with such
undertaking. Also more specifically, in a statute, a guardian, trustee,
executor, administrator, receiver, conservator, or any person acting in any
fiduciary capacity for any person, trust, or estate. Some examples of what,
in particular connections, the term has been held to include and not to
include are set out in the note."
20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines
`fiducial relation' thus :
"There is a technical distinction between a `fiducial relation' which is
more correctly applicable to legal relationships between parties, such as
guardian and ward, administrator and heirs, and other similar
relationships, and `confidential relation' which includes the legal
relationships, and also every other relationship wherein confidence is
rightly reposed and is exercised.
Generally, the term `fiduciary' applies to any person who occupies a
position of peculiar confidence towards another. It refers to integrity and
31
fidelity. It contemplates fair dealing and good faith, rather than legal
obligation, as the basis of the transaction. The term includes those
informal relations which exist whenever one party trusts and relies upon
another, as well as technical fiduciary relations."
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term
fiduciary was defined thus :
"A fiduciary is someone who has undertaken to act for and on behalf of
another in a particular matter in circumstances which give rise to a
relationship of trust and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty..... A fiduciary must act in good faith;
he must not make a profit out of his trust; he must not place himself in a
position where his duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without the informed
consent of his principal."
20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the
California Court of Appeals defined fiduciary relationship as under :
"any relationship existing between the parties to the transaction where one
of the parties is duty bound to act with utmost good faith for the benefit of
the other party. Such a relationship ordinarily arises where confidence is
reposed by one person in the integrity of another, and in such a relation the
party in whom the confidence is reposed, if he voluntarily accepts or
assumes to accept the confidence, can take no advantage from his acts
relating to the interests of the other party without the latter's knowledge
and consent."
21. The term `fiduciary' refers to a person having a duty to act for the
benefit of another, showing good faith and condour, where such other person
reposes trust and special confidence in the person owing or discharging the
duty. The term `fiduciary relationship' is used to describe a situation or
32
transaction where one person (beneficiary) places complete confidence in
another person (fiduciary) in regard to his affairs, business or transaction/s.
The term also refers to a person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in confidence and for the
benefit and advantage of the beneficiary, and use good faith and fairness in
dealing with the beneficiary or the things belonging to the beneficiary. If the
beneficiary has entrusted anything to the fiduciary, to hold the thing in trust
or to execute certain acts in regard to or with reference to the entrusted thing,
the fiduciary has to act in confidence and expected not to disclose the thing
or information to any third party. There are also certain relationships where
both the parties have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-`-vis another partner and
an employer vis-`-vis employee. An employee who comes into possession
of business or trade secrets or confidential information relating to the
employer in the course of his employment, is expected to act as a fiduciary
and cannot disclose it to others. Similarly, if on the request of the employer
or official superior or the head of a department, an employee furnishes his
personal details and information, to be retained in confidence, the employer,
the official superior or departmental head is expected to hold such personal
information in confidence as a fiduciary, to be made use of or disclosed only
33
if the employee's conduct or acts are found to be prejudicial to the employer.
22. In a philosophical and very wide sense, examining bodies can be said
to act in a fiduciary capacity, with reference to students who participate in an
examination, as a government does while governing its citizens or as the
present generation does with reference to the future generation while
preserving the environment. But the words `information available to a
person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in
its normal and well recognized sense, that is to refer to persons who act in a
fiduciary capacity, with reference to a specific beneficiary or beneficiaries
who are to be expected to be protected or benefited by the actions of the
fiduciary - a trustee with reference to the beneficiary of the trust, a guardian
with reference to a minor/physically/infirm/mentally challenged, a parent
with reference to a child, a lawyer or a chartered accountant with reference
to a client, a doctor or nurse with reference to a patient, an agent with
reference to a principal, a partner with reference to another partner, a
director of a company with reference to a share-holder, an executor with
reference to a legatee, a receiver with reference to the parties to a lis, an
employer with reference to the confidential information relating to the
employee, and an employee with reference to business dealings/transaction
of the employer. We do not find that kind of fiduciary relationship between
34
the examining body and the examinee, with reference to the evaluated
answer-books, that come into the custody of the examining body.
23. The duty of examining bodies is to subject the candidates who have
completed a course of study or a period of training in accordance with its
curricula, to a process of verification/examination/testing of their
knowledge, ability or skill, or to ascertain whether they can be said to have
successfully completed or passed the course of study or training. Other
specialized Examining Bodies may simply subject candidates to a process of
verification by an examination, to find out whether such person is suitable
for a particular post, job or assignment. An examining body, if it is a public
authority entrusted with public functions, is required to act fairly,
reasonably, uniformly and consistently for public good and in public
interest. This Court has explained the role of an examining body in regard to
the process of holding examination in the context of examining whether it
amounts to `service' to a consumer, in Bihar School Examination Board vs.
Suresh Prasad Sinha - (2009) 8 SCC 483, in the following manner:
"The process of holding examinations, evaluating answer scripts,
declaring results and issuing certificates are different stages of a single
statutory non-commercial function. It is not possible to divide this
function as partly statutory and partly administrative. When the
Examination Board conducts an examination in discharge of its statutory
function, it does not offer its "services" to any candidate. Nor does a
35
student who participates in the examination conducted by the Board, hires
or avails of any service from the Board for a consideration. On the other
hand, a candidate who participates in the examination conducted by the
Board, is a person who has undergone a course of study and who requests
the Board to test him as to whether he has imbibed sufficient knowledge to
be fit to be declared as having successfully completed the said course of
education; and if so, determine his position or rank or competence vis-a-
vis other examinees. The process is not therefore availment of a service by
a student, but participation in a general examination conducted by the
Board to ascertain whether he is eligible and fit to be considered as having
successfully completed the secondary education course. The examination
fee paid by the student is not the consideration for availment of any
service, but the charge paid for the privilege of participation in the
examination.......... The fact that in the course of conduct of the
examination, or evaluation of answer-scripts, or furnishing of mark-books
or certificates, there may be some negligence, omission or deficiency,
does not convert the Board into a service-provider for a consideration, nor
convert the examinee into a consumer ........."
It cannot therefore be said that the examining body is in a fiduciary
relationship either with reference to the examinee who participates in the
examination and whose answer-books are evaluated by the examining body.
24. We may next consider whether an examining body would be entitled
to claim exemption under section 8(1)(e) of the RTI Act, even assuming that
it is in a fiduciary relationship with the examinee. That section provides that
notwithstanding anything contained in the Act, there shall be no obligation
to give any citizen information available to a person in his fiduciary
relationship. This would only mean that even if the relationship is fiduciary,
the exemption would operate in regard to giving access to the information
36
held in fiduciary relationship, to third parties. There is no question of the
fiduciary withholding information relating to the beneficiary, from the
beneficiary himself. One of the duties of the fiduciary is to make thorough
disclosure of all relevant facts of all transactions between them to the
beneficiary, in a fiduciary relationship. By that logic, the examining body, if
it is in a fiduciary relationship with an examinee, will be liable to make a full
disclosure of the evaluated answer-books to the examinee and at the same
time, owe a duty to the examinee not to disclose the answer-books to anyone
else. If A entrusts a document or an article to B to be processed, on
completion of processing, B is not expected to give the document or article
to anyone else but is bound to give the same to A who entrusted the
document or article to B for processing. Therefore, if a relationship of
fiduciary and beneficiary is assumed between the examining body and the
examinee with reference to the answer-book, section 8(1)(e) would operate
as an exemption to prevent access to any third party and will not operate as a
bar for the very person who wrote the answer-book, seeking inspection or
disclosure of it.
25. An evaluated answer book of an examinee is a combination of two
different `informations'. The first is the answers written by the examinee and
37
second is the marks/assessment by the examiner. When an examinee seeks
inspection of his evaluated answer-books or seeks a certified copy of the
evaluated answer-book, the information sought by him is not really the
answers he has written in the answer-books (which he already knows), nor
the total marks assigned for the answers (which has been declared). What he
really seeks is the information relating to the break-up of marks, that is, the
specific marks assigned to each of his answers. When an examinee seeks
`information' by inspection/certified copies of his answer-books, he knows
the contents thereof being the author thereof. When an examinee is
permitted to examine an answer-book or obtain a certified copy, the
examining body is not really giving him some information which is held by
it in trust or confidence, but is only giving him an opportunity to read what
he had written at the time of examination or to have a copy of his answers.
Therefore, in furnishing the copy of an answer-book, there is no question of
breach of confidentiality, privacy, secrecy or trust. The real issue therefore is
not in regard to the answer-book but in regard to the marks awarded on
evaluation of the answer-book. Even here the total marks given to the
examinee in regard to his answer-book are already declared and known to
the examinee. What the examinee actually wants to know is the break-up of
marks given to him, that is how many marks were given by the examiner to
38
each of his answers so that he can assess how is performance has been
evaluated and whether the evaluation is proper as per his hopes and
expectations. Therefore, the test for finding out whether the information is
exempted or not, is not in regard to the answer book but in regard to the
evaluation by the examiner.
26. This takes us to the crucial issue of evaluation by the examiner. The
examining body engages or employs hundreds of examiners to do the
evaluation of thousands of answer books. The question is whether the
information relating to the `evaluation' (that is assigning of marks) is held
by the examining body in a fiduciary relationship. The examining bodies
contend that even if fiduciary relationship does not exist with reference to
the examinee, it exists with reference to the examiner who evaluates the
answer-books. On a careful examination we find that this contention has no
merit. The examining body entrusts the answer-books to an examiner for
evaluation and pays the examiner for his expert service. The work of
evaluation and marking the answer-book is an assignment given by the
examining body to the examiner which he discharges for a consideration.
Sometimes, an examiner may assess answer-books, in the course of his
employment, as a part of his duties without any specific or special
39
remuneration. In other words the examining body is the `principal' and the
examiner is the agent entrusted with the work, that is, evaluation of answer-
books. Therefore, the examining body is not in the position of a fiduciary
with reference to the examiner. On the other hand, when an answer-book is
entrusted to the examiner for the purpose of evaluation, for the period the
answer-book is in his custody and to the extent of the discharge of his
functions relating to evaluation, the examiner is in the position of a fiduciary
with reference to the examining body and he is barred from disclosing the
contents of the answer-book or the result of evaluation of the answer-book to
anyone other than the examining body. Once the examiner has evaluated the
answer books, he ceases to have any interest in the evaluation done by him.
He does not have any copy-right or proprietary right, or confidentiality right
in regard to the evaluation. Therefore it cannot be said that the examining
body holds the evaluated answer books in a fiduciary relationship, qua the
examiner.
27. We, therefore, hold that an examining body does not hold the
evaluated answer-books in a fiduciary relationship. Not being information
available to an examining body in its fiduciary relationship, the exemption
under section 8(1)(e) is not available to the examining bodies with reference
to evaluated answer-books. As no other exemption under section 8 is
40
available in respect of evaluated answer books, the examining bodies will
have to permit inspection sought by the examinees.
Re : Question (iv)
28. When an examining body engages the services of an examiner to
evaluate the answer-books, the examining body expects the examiner not to
disclose the information regarding evaluation to anyone other than the
examining body. Similarly the examiner also expects that his name and
particulars would not be disclosed to the candidates whose answer-books are
evaluated by him. In the event of such information being made known, a
disgruntled examinee who is not satisfied with the evaluation of the answer
books, may act to the prejudice of the examiner by attempting to endanger
his physical safety. Further, any apprehension on the part of the examiner
that there may be danger to his physical safety, if his identity becomes
known to the examinees, may come in the way of effective discharge of his
duties. The above applies not only to the examiner, but also to the
scrutiniser, co-ordinator, and head-examiner who deal with the answer book.
The answer book usually contains not only the signature and code number of
the examiner, but also the signatures and code number of the scrutiniser/co-
ordinator/head examiner. The information as to the names or particulars of
the examiners/co-ordinators/scrutinisers/head examiners are therefore
41
exempted from disclosure under section 8(1)(g) of RTI Act, on the ground
that if such information is disclosed, it may endanger their physical safety.
Therefore, if the examinees are to be given access to evaluated answer-
books either by permitting inspection or by granting certified copies, such
access will have to be given only to that part of the answer-book which does
not contain any information or signature of the examiners/co-
ordinators/scrutinisers/head examiners, exempted from disclosure under
section 8(1)(g) of RTI Act. Those portions of the answer-books which
contain information regarding the examiners/co-ordinators/scrutinisers/head
examiners or which may disclose their identity with reference to signature or
initials, shall have to be removed, covered, or otherwise severed from the
non-exempted part of the answer-books, under section 10 of RTI Act.
29. The right to access information does not extend beyond the period
during which the examining body is expected to retain the answer-books. In
the case of CBSE, the answer-books are required to be maintained for a
period of three months and thereafter they are liable to be disposed
of/destroyed. Some other examining bodies are required to keep the answer-
books for a period of six months. The fact that right to information is
available in regard to answer-books does not mean that answer-books will
have to be maintained for any longer period than required under the rules
42
and regulations of the public authority. The obligation under the RTI Act is
to make available or give access to existing information or information
which is expected to be preserved or maintained. If the rules and regulations
governing the functioning of the respective public authority require
preservation of the information for only a limited period, the applicant for
information will be entitled to such information only if he seeks the
information when it is available with the public authority. For example, with
reference to answer-books, if an examinee makes an application to CBSE for
inspection or grant of certified copies beyond three months (or six months or
such other period prescribed for preservation of the records in regard to
other examining bodies) from the date of declaration of results, the
application could be rejected on the ground that such information is not
available. The power of the Information Commission under section 19(8) of
the RTI Act to require a public authority to take any such steps as may be
necessary to secure compliance with the provision of the Act, does not
include a power to direct the public authority to preserve the information, for
any period larger than what is provided under the rules and regulations of the
public authority.
30. On behalf of the respondents/examinees, it was contended that having
regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on
43
the part of every public authority to maintain the information for a minimum
period of twenty years and make it available whenever an application was
made in that behalf. This contention is based on a complete misreading and
misunderstanding of section 8(3). The said sub-section nowhere provides
that records or information have to be maintained for a period of twenty
years. The period for which any particular records or information has to be
maintained would depend upon the relevant statutory rule or regulation of
the public authority relating to the preservation of records. Section 8(3)
provides that information relating to any occurrence, event or matters which
has taken place and occurred or happened twenty years before the date on
which any request is made under section 6, shall be provided to any person
making a request. This means that where any information required to be
maintained and preserved for a period beyond twenty years under the rules
of the public authority, is exempted from disclosure under any of the
provisions of section 8(1) of RTI Act, then, notwithstanding such
exemption, access to such information shall have to be provided by
disclosure thereof, after a period of twenty years except where they relate to
information falling under clauses (a), (c) and (i) of section 8(1). In other
words, section 8(3) provides that any protection against disclosure that may
be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to
44
be available after twenty years in regard to records which are required to be
preserved for more than twenty years. Where any record or information is
required to be destroyed under the rules and regulations of a public authority
prior to twenty years, section 8(3) will not prevent destruction in accordance
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring
all `information' to be preserved and maintained for twenty years or more,
nor does it override any rules or regulations governing the period for which
the record, document or information is required to be preserved by any
public authority.
31. The effect of the provisions and scheme of the RTI Act is to divide
`information' into the three categories. They are :
(i) Information which promotes transparency and accountability in
the working of every public authority, disclosure of which may
also help in containing or discouraging corruption (enumerated in
clauses (b) and (c) of section 4(1) of RTI Act).
(ii) Other information held by public authority (that is all information
other than those falling under clauses (b) and (c) of section 4(1) of
RTI Act).
(iii) Information which is not held by or under the control of any
public authority and which cannot be accessed by a public
authority under any law for the time being in force.
Information under the third category does not fall within the scope of RTI
Act. Section 3 of RTI Act gives every citizen, the right to `information' held
45
by or under the control of a public authority, which falls either under the first
or second category. In regard to the information falling under the first
category, there is also a special responsibility upon public authorities to suo
moto publish and disseminate such information so that they will be easily
and readily accessible to the public without any need to access them by
having recourse to section 6 of RTI Act. There is no such obligation to
publish and disseminate the other information which falls under the second
category.
32. The information falling under the first category, enumerated in
sections 4(1)(b) & (c) of RTI Act are extracted below :
"4. Obligations of public authorities.-(1) Every public authority shall--
(a) xxxxxx
(b) publish within one
hundred and twenty days from the enactment of this Act,--
(i) the particulars of its organisation, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making
process, including channels of supervision and
accountability;
(iv) the norms set by it for the discharge of its functions;
(v) the rules, regulations, instructions, manuals and records,
held by it or under its control or used by its employees for
discharging its functions;
(vi) a statement of the categories of documents that are held
by it or under its control;
46
(vii) the particulars of any arrangement that exists for
consultation with, or representation by, the members of the
public in relation to the formulation of its policy or
implementation thereof;
(viii) a statement of the boards, councils, committees and
other bodies consisting of two or more persons constituted
as its part or for the purpose of its advice, and as to whether
meetings of those boards, councils, committees and other
bodies are open to the public, or the minutes of such
meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its
officers and employees, including the system of
compensation as provided in its regulations;
(xi) the budget allocated to each of its agency, indicating
the particulars of all plans, proposed expenditures and
reports on disbursements made;
(xii) the manner of execution of subsidy programmes,
including the amounts allocated and the details of
beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits or
authorisations granted by it;
(xiv) details in respect of the information, available to or
held by it, reduced in an electronic form;
(xv) the particulars of facilities available to citizens for
obtaining information, including the working hours of a
library or reading room, if maintained for public use;
(xvi) the names, designations and other particulars of the
Public Information Officers;
(xvii) such other information as may be prescribed; and
thereafter update these publications every year;
(c) publish all relevant facts
while formulating important policies or announcing the decisions
which affect public;
(emphasis supplied)
47
Sub-sections (2), (3) and (4) of section 4 relating to dissemination of
information enumerated in sections 4(1)(b) & (c) are extracted below:
"(2) It shall be a constant endeavour of every public
authority to take steps in accordance with the requirements of clause (b) of
sub-section (1) to provide as much information suo motu to the public
at regular intervals through various means of communications,
including internet, so that the public have minimum resort to the use
of this Act to obtain information.
(3) For the purposes of sub-section (1), every
information shall be disseminated widely and in such form and
manner which is easily accessible to the public.
(4) All materials shall be disseminated taking into
consideration the cost effectiveness, local language and the most effective
method of communication in that local area and the information should be
easily accessible, to the extent possible in electronic format with the
Central Public Information Officer or State Public Information Officer, as
the case may be, available free or at such cost of the medium or the print
cost price as may be prescribed.
Explanation.--For the purposes of sub-sections (3) and (4), "disseminated"
means making known or communicated the information to the public
through notice boards, newspapers, public announcements, media
broadcasts, the internet or any other means, including inspection of offices
of any public authority."
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act is in the nature
of an exception to section 3 which empowers the citizens with the right to
information, which is a derivative from the freedom of speech; and that
therefore section 8 should be construed strictly, literally and narrowly. This
may not be the correct approach. The Act seeks to bring about a balance
between two conflicting interests, as harmony between them is essential for
preserving democracy. One is to bring about transparency and accountability
by providing access to information under the control of public authorities.
48
The other is to ensure that the revelation of information, in actual practice,
does not conflict with other public interests which include efficient operation
of the governments, optimum use of limited fiscal resources and
preservation of confidentiality of sensitive information. The preamble to the
Act specifically states that the object of the Act is to harmonise these two
conflicting interests. While sections 3 and 4 seek to achieve the first
objective, sections 8, 9, 10 and 11 seek to achieve the second objective.
Therefore when section 8 exempts certain information from being disclosed,
it should not be considered to be a fetter on the right to information, but as
an equally important provision protecting other public interests essential for
the fulfilment and preservation of democratic ideals.
34. When trying to ensure that the right to information does not conflict
with several other public interests (which includes efficient operations of the
governments, preservation of confidentiality of sensitive information,
optimum use of limited fiscal resources, etc.), it is difficult to visualise and
enumerate all types of information which require to be exempted from
disclosure in public interest. The legislature has however made an attempt to
do so. The enumeration of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier Act that is section 8 of
Freedom to Information Act, 2002. The Courts and Information
49
Commissions enforcing the provisions of RTI Act have to adopt a purposive
construction, involving a reasonable and balanced approach which
harmonises the two objects of the Act, while interpreting section 8 and the
other provisions of the Act.
35. At this juncture, it is necessary to clear some misconceptions about
the RTI Act. 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. 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'
50
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. Many public
authorities have, as a public relation exercise, provide advice, guidance and
opinion to the citizens. But that is purely voluntary and should not be
confused with any obligation under the RTI Act.
36. Section 19(8) of RTI Act has entrusted the Central/State Information
Commissions, with the power to require any public authority to take any
such steps as may be necessary to secure the compliance with the provisions
of the Act. Apart from the generality of the said power, clause (a) of section
19(8) refers to six specific powers, to implement the provision of the Act.
Sub-clause (i) empowers a Commission to require the public authority to
provide access to information if so requested in a particular `form' (that is
either as a document, micro film, compact disc, pendrive, etc.). This is to
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a
Commission to require the public authority to appoint a Central Public
Information Officer or State Public Information Officer. This is to secure
compliance with section 5 of the Act. Sub-clause (iii) empowers the
Commission to require a public authority to publish certain information or
categories of information. This is to secure compliance with section 4(1) and
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public
51
authority to make necessary changes to its practices relating to the
maintenance, management and destruction of the records. This is to secure
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)
empowers a Commission to require the public authority to increase the
training for its officials on the right to information. This is to secure
compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a
Commission to require the public authority to provide annual reports in
regard to the compliance with clause (b) of section 4(1). This is to ensure
compliance with the provisions of clause (b) of section 4(1) of the Act. The
power under section 19(8) of the Act however does not extend to requiring a
public authority to take any steps which are not required or contemplated to
secure compliance with the provisions of the Act or to issue directions
beyond the provisions of the Act. The power under section 19(8) of the Act
is intended to be used by the Commissions to ensure compliance with the
Act, in particular ensure that every public authority maintains its records
duly catalogued and indexed in the manner and in the form which facilitates
the right to information and ensure that the records are computerized, as
required under clause (a) of section 4(1) of the Act; and to ensure that the
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are
published and disseminated, and are periodically updated as provided in sub-
52
sections (3) and (4) of section 4 of the Act. If the `information' enumerated
in clause (b) of section 4(1) of the Act are effectively disseminated (by
publications in print and on websites and other effective means), apart from
providing transparency and accountability, citizens will be able to access
relevant information and avoid unnecessary applications for information
under the Act.
37. The right to information is a cherished right. Information and right to
information are intended to be formidable tools in the hands of responsible
citizens to fight corruption and to bring in transparency and accountability.
The provisions of RTI Act should be enforced strictly and all efforts should
be made to bring to light the necessary information under clause (b) of
section 4(1) of the Act which relates to securing transparency and
accountability in the working of public authorities and in discouraging
corruption. But in regard to other information,(that is information other than
those enumerated in section 4(1)(b) and (c) of the Act), equal importance
and emphasis are given to other public interests (like confidentiality of
sensitive information, fidelity and fiduciary relationships, efficient operation
of governments, etc.). Indiscriminate and impractical demands or directions
under RTI Act for disclosure of all and sundry information (unrelated to
transparency and accountability in the functioning of public authorities and
53
eradication of corruption) would be counter-productive as it will adversely
affect the efficiency of the administration and result in the executive getting
bogged down with the non-productive work of collecting and furnishing
information. The Act should not be allowed to be misused or abused, to
become a tool to obstruct the national development and integration, or to
destroy the peace, tranquility and harmony among its citizens. Nor should it
be converted into a tool of oppression or intimidation of honest officials
striving to do their duty. The nation does not want a scenario where 75% of
the staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular
duties. The threat of penalties under the RTI Act and the pressure of the
authorities under the RTI Act should not lead to employees of a public
authorities prioritising `information furnishing', at the cost of their normal
and regular duties.
Conclusion
38. In view of the foregoing, the order of the High Court directing the
examining bodies to permit examinees to have inspection of their answer
books is affirmed, subject to the clarifications regarding the scope of the RTI
54
Act and the safeguards and conditions subject to which `information' should
be furnished. The appeals are disposed of accordingly.
............................J
[R. V. Raveendran]
............................J
[A. K. Patnaik]
New Delhi;
August 9, 2011.
