The Institute of
Chartered Accountants of India Vs. Shaunak H. Satya & Ors.
J U D G M E N T
appellant Institute of Chartered Accountants of India (for short `ICAI') is a body
corporate established under section 3 of the Chartered Accountants Act, 1949.
One of the functions of the appellant council is to conduct the examination of candidates
for enrolment as Chartered Accountants. The first respondent appeared in the Chartered
Accountants' final examination conducted by ICAI in November, 2007. The results
were declared in January 2008. The first respondent who was not successful in
the examination applied for verification of marks. The appellant carried out
the verification in accordance with the provisions of the Chartered Accountants
2Regulations, 1988 and found that there was no discrepancy in evaluation of answerscripts.
The appellant informed the first respondent accordingly.
18.1.2008 the appellant submitted an application seeking the following
information under 13 heads, under the Right to Information Act, 2005 (`RTI Act'
for short) :
qualification of the examiners & Moderators with subject wise
classifications. (you may not give me the names of the examiners & moderators).
b. Procedure established
for evaluation of exam papers.
c. Instructions issued
to the examiners, and moderators oral as well as written if any.
d. Procedure established
for selection of examiners & moderators. 5) Model answers if any given to
the examiners & moderators if any.
e. Remuneration paid to
the examiners & moderators.
f. Number of students
appearing for exams at all levels in the last 2 years (i.e.
PE1/PE2/PCC/CPE/Final with break up)
g. Number of students
that passed at the 1st attempt from the above.
h. From the number of students
that failed in the last 2 years (i.e. PE1/PE2/PCC/CPE/Final with break up) from
the above, how many students opted for verification of marks as per regulation
i. Procedure adopted at
the time of verification of marks as above. 11) Number of students whose marks
were positively changed out of those students that opted for verification of
j. Educational qualifications
of the persons performing the verification of marks under Regulation 38 &
remuneration paid to them.
k. Number of times that the
council has revised the marks of any candidate, or any class of candidates, in accordance
with regulation 3 39(2) of the Chartered Accountants Regulations, 1988, the criteria
used for such discretion, the quantum of such revision, the quantum of such revision,
the authority that decides such discretion, and the number of students along with
the quantum of revision affected by such revision in the last 5 exams, held at all
levels (i.e. PE1/PE2/PCC/CPE/Final with break up)."
appellant by its reply dated 22.2.2008 gave the following responses/information
in response to the 13 queries :
Professionals, academicians and officials with relevant academic and practical
experience and exposure in relevant and related fields.
b. 2&3. Evaluation of
answer books is carried out in terms of the guidance including instructions provided
by Head Examiners appointed for each subject(s). Subsequently, a review thereof
is undertaken for the purpose of moderators.
c. In terms of (1) above,
a list of examiners is maintained under Regulation 42 of the Chartered
Accountants Regulations, 1988. Based on the performance of the examiners,
moderators are appointed from amongst the examiners.
are given in confidence of examiners for the purpose of evaluation. Services of
moderators are utilized in our context for paper setting.
per answer book is paid to the examiner while Rs.10,000/- is paid to the
moderator for each paper.
number of students who appeared in the last two years is as follow:
Month & Year
Number of students Appeared
*CPE is read as
Common Proficiency Test (CPT).
such a data is not compiled, it is regretted that the number of students who
passed Final Examination at the 1st attempt cannot be made available.
number of students who applied for the verification of answer books is as
of students who applied for verification from among the failed candidates*
* This figure may
contain some pass candidates also.
request for verification is processed in accordance with Regulation 39(4) of the
Chartered Accountants Regulation, 1988 through well laid down scientific and meticulous
procedure and a comprehensive checking is done before arriving at any conclusion.
The process of verification starts after declaration of result and each request
is processed on first come first served basis. The verification of the answer books,
as requested, is done by two independent persons separately and then, reviewed
by an Officer of the Institute and upon his satisfaction, the letter informing the
outcome of the verification exercise is issued after the comprehensive check has
been satisfactorily completed.
number of students who were declared passed consequent to the verification of
answer books is as given below:-
of students who applied for verification from among the failed candidates*
* This figure may
contain some pass candidates also.
persons such as retired Govt. teachers/Officers are assigned the task of verification
of answer books work. A token honorarium of Rs.6/- per candidate besides lump sum
daily conveyance allowance is paid.
The Examination Committee in terms of Regulation 39(2) has the authority to revise
the marks based on the findings of the Head Examiners and incidental information
in the knowledge of the Examination Committee, in its best wisdom. Since the details
sought are highly confidential in nature and there is no larger public interest
warrants disclosure, the same is denied under Section 8(1)(e) of the Right to
Information Act, 2005." (emphasis supplied)5. Not being satisfied with the
same, the respondent filed an appeal before the appellate authority. The
appellate authority dismissed the appeal, by order dated 10.4.2008, concurring with
the order of the Chief Public Information Officer of the appellant.
The first respondent
thereafter filed a second appeal before the Central Information Commission (for
short `CIC') in regard to queries (1) to (5) and (7) to (13). CIC by order
dated 23.12.2008 rejected the appeal in regard to queries 3, 5 and 13 (as also
Query 2) while directing the disclosure of information in regard to the other
questions. We extract below the reasoning given by the CIC to refuse disclosure
in regard to queries 3,5 and 13. "Re: Query No.3. Decision: This request of
the Appellant cannot be without seriously and perhaps irretrievably
compromising the entire examination process. An instruction issued by a public authority
- in this case, examination conducting authority - to its examiners is strictly
confidential. There is an implied contract between the examiners and the examination
conducting public authority.
It would be
inappropriate to disclose this information. This item of information too, like
the previous one, attracts section 8(1)(d) being the intellectual property of the
public authority having being developed through careful empirical and intellectual
study and analysis over the years. I, therefore, hold that this item of query
attracts exemption under section 8(1)(e) as well as section 8(1)(d) of the RTI
Act. Re : Query No.5. Decision: Respondents have explained that what they provide
to the examiners is "solutions" and not "model answers" as
assumed by the appellant. For the aid of the students and examinees,
"suggested answers" to the questions in an exam are brought out and
sold in the market.
It would be wholly
inappropriate to provide to the students the solutions given to the questions only
for the exclusive use of the examiners and moderators. Given the confidentiality
of interaction between the public authority holding the examinations and the examiners,
the "solutions" qualifies to be items barred by section 8(1)(e) of
the RTI Act. This item of information also attracts section 8(1)(d) being the exclusive
intellectual property of the public authority. Respondents have rightly advised
the appellant to secure the "suggested answers" to the questions from
the open market, where these are available for sale. Re : Query No.13. Decision:
I find no infirmity in the reply furnished to the appellant. It is a
categorical statement and must be accepted as such.
Appellant seems to
have certain presumptions and assumptions about what these replies should be. Respondents
are not obliged to cater to that. It is therefore held that there shall be no further
disclosure of information as regards this item of query."6. Feeling
aggrieved by the rejection of information sought under items 3, 5 and 13, the first
respondent approached the Bombay High Court by filing a writ petition. The High
Court allowed the said petition by order 7dated 30.11.2010 and directed the appellant
to supply the information in regard to queries 3, 5 and 13, on the following
reasoning : "According to the Central Information Commission the solutions
which have been supplied by the Board to the examiners are given in confidence and
therefore, they are entitled to protection under Section 8(1)(e) of the RTI
Act. Section 8(1)(e) does not protect confidential information and the claim of
intellectual property has not made by the respondent No.2 anywhere. In the reply
it is suggested that the suggested answers are published and sold in open
market by the Board.
Therefore, there can
be no confidentiality about suggested answers. It is no where explained what is
the difference between the suggested answers and the solutions. In our opinion,
the orders of both Authorities in this respect also suffer from non- application
of mind and therefore they are liable to be set aside. We find that the right
given under the Right to Information Act has been dealt with by the Authorities
under that Act in most casual manner without properly applying their minds to
the material on record. In our opinion, therefore, information sought against queries
Nos.3,5 and 13 could not have been denied by the Authorities to the petitioner.
The principal defence of the respondent No.2 is that the information is
confidential. Till the result of the examination is declared, the information
sought by the petitioner has to be treated as confidential, but once the result
is declared, in our opinion, that information cannot be treated as confidential.
We were not shown anything
which would even indicate that it is necessary to keep the information in
relation to the examination which is over and the result is also declared as
confidential." 7. The said order of the High Court is challenged in this appeal
by special leave. The appellant submitted that it conducts the following examinations:
(i) the common proficiency test; (ii) professional education examination-II
(till May 2010); (iii) professional competence examination; (iv) integrated
professional competence examination; (v) final examination; and (vi) post qualification
course examinations. A person is enrolled as a Chartered Accountant only after passing
the common proficiency test, 8professional educational examination-II/professional
competence examination and final examination.
The number of
candidates who applied for various examinations conducted by ICAI were 2.03
lakhs in 2006, 4.16 lakhs in 2007; 3.97 lakh candidates in 2008 and 4.20 lakhs candidates
in 2009. ICAI conducts the examinations in about 343 centres spread over 147 cities
throughout the country and abroad. The appellant claims to follow the following
elaborate system with established procedures in connection with its examinations,
taking utmost care with regard to valuation of answer sheets and preparation of
results and also in carrying out verification in case a student applies for the
same in accordance with the following Regulations: "Chartered Accountants
with a standing of minimum of 5-7 years in the profession or teachers with a minimum
experience of 5-7 years in university education system are empanelled as
examiners of the Institute.
criteria to be empanelled as examiner for the examinations held in November,
2010 was that a chartered accountant with a minimum of 3 years' standing, if in
practice, or with a minimum of 10 yeas standing, if in service and University
lecturers with a minimum of 5 years' teaching experience at graduate/post graduate
level in the relevant subjects with examiner ship experience of 5 years. The
said criteria is continued to be followed. The bio-data of such persons who wish
to be empanelled are scrutinized by the Director of Studies of the Institute in
the first instance. Thereafter, Examination Committee considers each such application
and takes a decision thereon.
The examiners, based
on their performance and experience with the system of the ICAI, are invited to
take up other assignments of preparation of question paper, suggested solution,
marking scheme, etc. and also appointed as Head Examiners to supervise the evaluation
carried out by the different examiners in a particular subject from time to
time. A question paper and its solution are finalized by different experts in
the concerned subject at 3 stages. In addition, the solution is also vetted by Director
of Studies of the Institute after the examination is held and before the evaluation
of the answer sheets are carried out by examiners. All possible alternate solutions
to a particular question as intimated by different examiners in a subject are also
included in the solution. Each examiner in a particular subject is issued
detailed instructions on marking scheme by the Head Examiners and general guidelines
for evaluation issued by the ICAI.
In addition, performance
of each examiner, to ascertain whether the said examiner has complied with the instructions
issued as also the general guidelines of the Institute, is assessed by the Head
Examiner at two stages before the declaration of result. The said process has been
evolved based on the experience gained in the last 60 years of conducting
examinations and to ensure all possible uniformity in evaluation of answer sheets
carried out by numerous examiners in a particular subject and to provide
justice to the candidates. The examination process/procedure/systems of the
ICAI are well in place and have been evolved over several decades out of
process/procedure/systems have adequate checks to ensure fair results and also
ensure that due justice is done to each candidate and no candidate ever suffers
on any count." 8. The appellant contends that the information sought as
per queries (3) and (5) - that is, instructions and model answers, if any, issued
to the examiners and moderators by ICAI cannot be disclosed as they are
exempted from disclosure under clauses (d) and (e) of sub-section (1) of
Section 8 of RTI Act. It is submitted that the request for information is also
liable to be rejected under section 9 of the Act. They also contended that in
regard to query No.(13), whatever information available had been furnished, apart
from generally invoking section 8(1)(e) to claim exemption.
9. On the said contentions,
the following questions arise for our consideration: 10(i) Whether the
instructions and solutions to questions (if any) given by ICAI to examiners and
moderators, are intellectual property of the ICAI, disclosure of which would
harm the competitive position of third parties and therefore exempted under
section 8(1)(d) of the RTI Act?(ii) Whether providing access to the information
sought (that is instructions and solutions to questions issued by ICAI to examiners
and moderators) would involve an infringement of the copyright and therefore the
request for information is liable to be rejected under section 9 of the RTI Act?
(iii) Whether the instructions and solutions to questions are information made
available to examiners and moderators in their fiduciary capacity and therefore
exempted under section 8(1)(e) of the RTI Act? (iv) Whether the High Court was justified
in directing the appellant to furnish to the first respondent five items of information
sought (in query No.13) relating to Regulation 39(2) of Chartered Accountants
Regulations, 1988?Re: Question (i)
10. The term `intellectual
property' refers to a category of intangible rights protecting commercially valuable
products of human intellect comprising primarily trade mark, copyright and patent
right, as also trade secret rights, publicity rights, moral rights and rights against
unfair 11competition (vide Black's Law Dictionary, 7th Edition, page 813).
Question papers, instructions regarding evaluation and solutions to questions (or
model answers) which are furnished to examiners and moderators in connection with
evaluation of answer scripts, are literary works which are products of human
intellect and therefore subject to a copyright.
The paper setters and
authors thereof (other than employees of ICAI), who are the first owners thereof
are required to assign their copyright in regard to the question
papers/solutions in favour of ICAI. We extract below the relevant standard
communication sent by ICAI in that behalf: "The Council is anxious to prevent
the unauthorized circulation of Question Papers set for the Chartered
Accountants Examinations as well as the solutions thereto. With that object in
view, the Council proposes to reserve all copy-rights in the question papers as
well as solutions. In order to enable the Council to retain the copy-rights, it
has been suggested that it would be advisable to obtain a specific assignment
of any copy-rights or rights of publication that you may be deemed to possess
in the questions set by you for the Chartered Accountants Examinations and the
solutions thereto in favour of the Council. I have no doubt that you will
appreciate that this is merely a formality to obviate any misconception likely
to arise later on.
"In response to it,
the paper setters/authors give declarations of assignment, assigning their
copyrights in the question papers and solutions prepared by them, in favour of
ICAI. Insofar as instructions prepared by the employees of ICAI, the copyright vests
in ICAI. Consequently, the question papers, solutions to questions and
instructions are the intellectual properties of ICAI. 12The appellant contended
that if the question papers, instructions or solutions to questions/model
answers are disclosed before the examination is held, it would harm the
competitive position of all other candidates who participate in the examination
and therefore the exemption under section 8(1)(d) is squarely attracted. 11. The
first respondent does not dispute that the appellant is entitled to claim a
copyright in regard to the question papers, solutions/model answers, instructions
relating to evaluation and therefore the said material constitute intellectual property
of the appellant. But he contends that the exemption under section 8(1)(d) will
not be available if the information is merely an intellectual property.
The exemption under
section 8(1)(d) is available only in regard to such intellectual property, the
disclosure of which would harm the competitive position of any third party. It was
submitted that the appellant has not been able to demonstrate that the disclosure
of the said intellectual property (instructions and solutions/model answers)
would harm the competitive position of any third party. 12. Information can be sought
under the RTI Act at different stages or different points of time. What is
exempted from disclosure at one point of time may cease to be exempted at a
later point of time, depending upon the 13nature of exemption.
For example, any
information which is exempted from disclosure under section 8, is liable to be
disclosed if the application is made in regard to the occurrence or event which
took place or occurred or happened twenty years prior to the date of the
request, vide section 8(3) of the RTI Act. In other words, information which was
exempted from disclosure, if an application is made within twenty years of the
occurrence, may not be exempted if the application is made after twenty years.
Similarly, if information relating to the intellectual property, that is the question
papers, solutions/model answers and instructions, in regard to any particular examination
conducted by the appellant cannot be disclosed before the examination is held, as
it would harm the competitive position of innumerable third parties who are
taking the said examination.
Therefore it is obvious
that the appellant examining body is not liable to give to any citizen any information
relating to question papers, solutions/model answers and instructions relating
to a particular examination before the date of such examination. But the
position will be different once the examination is held. Disclosure of the
question papers, model answers and instructions in regard to any particular examination,
would not harm the competitive position of any third party once the examination
is held. In fact the question papers are disclosed to everyone at the time of
The appellant 14voluntarily
publishes the "suggested answers" in regard to the question papers in
the form of a book for sale every year, after the examination. Therefore section
8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers,
model answers (solutions to questions) and instructions if any given to the examiners
and moderators after the examination and after the evaluation of answerscripts
is completed, as at that stage they will not harm the competitive position of any
We therefore reject the
contention of the appellant that if an information is exempt at any given point
of time, it continues to be exempt for all time to come. Re : Question (ii) 13.
Section 9 of the RTI Act provides that a Central or State Public Information Officer
may reject a request for information where providing access to such information
would involve an infringement of copyright subsisting in a person other than
the State. The word `State' used in section 9 of RTI Act refers to the Central or
State Government, Parliament or Legislature of a State, or any local or other authorities
as described under Article 12 of the Constitution. The reason for using the
word `State' and not `public authority' in section 9 of RTI Act is apparently because
the definition of `public authority' in the Act is wider than the definition of
`State' in Article 12, and includes even non-government organizations financed directly
or indirectly by funds provided by the appropriate government.
Be that as it may. An
application for information would be rejected under section 9 of RTI Act, only
if information sought involves an infringement of copyright subsisting in a person
other than the State. ICAI being a statutory body created by the Chartered Accountants
Act, 1948 is `State'. The information sought is a material in which ICAI claims
a copyright. It is not the case of ICAI that anyone else has a copyright in
such material. In fact it has specifically pleaded that even if the question
papers, solutions/model answers, or other instructions are prepared by any third
party for ICAI, the copyright therein is assigned in favour of ICAI. Providing
access to information in respect of which ICAI holds a copyright, does not involve
infringement of a copyright subsisting in a person other than the State. Therefore
ICAI is not entitled to claim protection against disclosure under section 9 of
the RTI Act.
is yet another reason why section 9 of RTI Act will be inapplicable. The words `infringement
of copyright' have a specific connotation. Section 51 of the Copyright Act, 1957
provides when a 16copyright in a work shall be deemed to be infringed. Section
52 of the Act enumerates the acts which are not infringement of a copyright. A
combined reading of sections 51 and 52(1)(a) of Copyright Act shows that
furnishing of information by an examining body, in response to a query under
the RTI Act may not be termed as an infringement of copyright. Be that as it
may.Re : Question (iii)
will now consider the third contention of ICAI that the information sought being
an information available to a person in his fiduciary relationship, is exempted
under section 8(1)(e) of the RTI Act. This Court in Central Board of Secondary Education
& Anr. v. Aditya Bandopadhyay & Ors. [2011 (8) SCALE 645] considered
the meaning of the words information available to a person in his fiduciary capacity
and observed thus:
"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."
instructions and `solutions to questions' issued to the examiners and
moderators in connection with evaluation of answer scripts, as noticed above, is
the intellectual property of ICAI. These are made available by ICAI to the
examiners and moderators to enable them to evaluate the answer scripts
correctly and effectively, in a proper manner, to achieve uniformity and consistency
in evaluation, as a large number of evaluators and moderators are engaged by ICAI
in connection with the evaluation.
The instructions and solutions
to questions are given by the ICAI to the examiners and moderators to be held in
confidence. The examiners and moderators are required to maintain absolute
secrecy and cannot disclose the answer scripts, the evaluation of answer
scripts, the instructions of ICAI and the solutions to questions made available
by ICAI, to anyone. The examiners and moderators are in the position of agents
and ICAI is in the position of principal in regard to such information which
ICAI gives to the examiners and moderators to achieve uniformity, consistency and
exactness of evaluation of the answer scripts. When anything is given and taken
in trust or in confidence, requiring or expecting secrecy and confidentiality to
be 18maintained in that behalf, it is held by the recipient in a fiduciary relationship.
should be noted that section 8(1)(e) uses the words "information available
to a person in his fiduciary relationship. Significantly section 8(1)(e) does
not use the words "information available to a public authority in its
fiduciary relationship". The use of the words "person" shows
that the holder of the information in a fiduciary relationship need not only be
a `public authority' as the word `person' is of much wider import than the word
Therefore the exemption
under section 8(1)(e) is available not only in regard to information that is
held by a public authority (in this case the examining body) in a fiduciary capacity,
but also to any information that is given or made available by a public
authority to anyone else for being held in a fiduciary relationship. In other
words, anything given and taken in confidence expecting confidentiality to be
maintained will be information available to a person in fiduciary relationship.
As a consequence, it has to be held that the instructions and solutions to
questions communicated by the examining body to the examiners, head-examiners
and moderators, are information available to such persons in their fiduciary relationship
and therefore exempted from disclosure under section 8(1)(d) of RTI Act.
information to which RTI Act applies falls into two categories, namely, (i)
information which promotes transparency and accountability in the working of every
public authority, disclosure of which helps in containing or discouraging
corruption, enumerated in clauses (b) and (c) of section 4(1) of RTI Act; and
(ii) other information held by public authorities not falling under section
4(1)(b) and (c) of RTI Act. In regard to information falling under the first category,
the public authorities owe a duty to disseminate the information widely suo
moto to the public so as to make it easily accessible to the public. In regard to
information enumerated or required to be enumerated under section 4(1)(b) and (c)
of RTI Act, necessarily and naturally, the competent authorities under the RTI
Act, will have to act in a pro-active manner so as to ensure accountability and
ensure that the fight against corruption goes on relentlessly.
But in regard to
other information which do not fall under Section 4(1)(b) and (c) of the Act,
there is a need to proceed with circumspection as it is necessary to find out whether
they are exempted from disclosure. One of the objects of democracy is to bring
about transparency of information to contain corruption and bring about accountability.
But achieving this object does not mean that other equally important public interests
including efficient functioning of the governments and public authorities,
optimum use of limited fiscal resources, 20preservation of confidentiality of
sensitive information, etc. are to be ignored or sacrificed.
The object of RTI Act
is to harmonize the conflicting public interests, that is, ensuring transparency
to bring in accountability and containing corruption on the one hand, and at
the same time ensure that the revelation of information, in actual practice, does
not harm or adversely affect other public interests which include efficient functioning
of the governments, optimum use of limited fiscal resources and preservation of
confidentiality of sensitive information, on the other hand.
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. Therefore in
dealing with information not falling under section 4(1)(b) and (c), the
competent authorities under the RTI Act will not read the exemptions in section
8 in a restrictive manner but in a practical manner so that the other public interests
are preserved and the RTI Act attains a fine balance between its goal of attaining
transparency of information and safeguarding the other public interests.
the ten categories of information which are exempted from disclosure under
section 8 of RTI Act, six categories which are described in clauses (a), (b),
(c), (f), (g) and (h) carry absolute exemption. Information enumerated in
clauses (d), (e) and (j) on the other hand get only conditional exemption that
is the exemption is subject to the overriding power of the competent authority under
the RTI Act in larger public interest, to direct disclosure of such information.
The information referred
to in clause (i) relates to an exemption for a specific period, with an
obligation to make the said information public after such period. The information
relating to intellectual property and the information available to persons in their
fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do
not enjoy absolute exemption. Though exempted, if the competent authority under
the Act is satisfied that larger public interest warrants disclosure of such
information, such information will have to be disclosed. It is needless to say
that the competent authority will have to record reasons for holding that an
exempted information should be disclosed in larger public interest.
this case the Chief Information Commissioner rightly held that the information
sought under queries (3) and (5) were exempted under section 8(1)(e) and that there
was no larger public interest requiring denial of the statutory exemption
regarding such information. The High Court fell into an 22error in holding that
the information sought under queries (3) and (5) was not exempted. Re :
(13) of the first respondent required the appellant to disclose the following information:
(i) The number of times ICAI had revised the marks of any candidate or any
class of candidates under Regulation 39(2); (ii) the criteria used for
exercising such discretion for revising the marks; (iii) the quantum of such revisions;
(iv) the authority who decides the exercise of discretion to make such
revision; and (v) the number of students (with particulars of quantum of
revision) affected by such revision held in the last five examinations at all
Regulation 39(2) of the Chartered Accountants Regulations, 1988 provides that
the council may in its discretion, revise the marks obtained by all candidates
or a section of candidates in a particular paper or papers or in the aggregate,
in such manner as may be necessary for maintaining its standards of pass
percentage provided in the Regulations.
Regulation 39(2) thus
provides for what is known as `moderation', which is a necessary concomitant of
evaluation process of answer scripts where a large number of examiners are engaged
to evaluate a large number of answer scripts. This Court explained the standard
process of moderation in Sanjay Singh v. U.P. Public Service Commission - 2007
(3) SCC 720 thus: "When a large number of candidates appear for an examination,
it is necessary to have uniformity and consistency in valuation of the answer- scripts.
Where the number of candidates taking the examination are limited and only one examiner
(preferably the paper-setter himself) evaluates the answer-scripts, it is to be
assumed that there will be uniformity in the valuation. But where a large
number of candidates take the examination, it will not be possible to get all the
answer-scripts evaluated by the same examiner.
It, therefore, becomes
necessary to distribute the answer-scripts among several examiners for
valuation with the paper-setter (or other senior person) acting as the Head Examiner.
When more than one examiner evaluate the answer-scripts relating to a subject, the
subjectivity of the respective examiner will creep into the marks awarded by
him to the answer- scripts allotted to him for valuation. Each examiner will
apply his own yardstick to assess the answer-scripts. Inevitably therefore, even
when experienced examiners receive equal batches of answer scripts, there is difference
in average marks and the range of marks awarded, thereby affecting the merit of
This apart, there is
'Hawk- Dove' effect. Some examiners are liberal in valuation and tend to award
more marks. Some examiners are strict and tend to give less marks. Some may be
moderate and balanced in awarding marks. Even among those who are liberal or
those who are strict, there may be variance in the degree of strictness or
liberality. This means that if the same answer-script is given to different
examiners, there is all likelihood of different marks being assigned.
If a very well written
answer-script goes to a strict examiner and a mediocre answer-script goes to a
liberal examiner, the mediocre answer-script may be awarded more marks than the
excellent answer-script. In other words, there is 'reduced valuation' by a strict
examiner and 'enhanced valuation' by a liberal examiner. This is known as
'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to
evolve a procedure to ensure uniformity inter se the Examiners so that the
effect of 'examiner subjectivity' or 'examiner variability' is minimised. The procedure
adopted to reduce examiner subjectivity or variability is known as moderation.
The classic method of moderation is as follows: xxx xxx xxx (ii) To achieve
uniformity in valuation, where more than one examiner is involved, a meeting of
the Head Examiner with all the examiners is held soon after the examination.
They discuss thoroughly
the question paper, the possible answers and the weightage to be given to
various aspects of 24the answers. They also carry out a sample valuation in the
light of their discussions. The sample valuation of scripts by each of them is
reviewed by the Head Examiner and variations in assigning marks are further
discussed. After such discussions, a consensus is arrived at in regard to the
norms of valuation to be adopted. On that basis, the examiners are required to complete
the valuation of answer scripts. But this by itself, does not bring about
uniformity of assessment inter se the examiners. In spite of the norms agreed, many
examiners tend to deviate from the expected or agreed norms, as their caution
is overtaken by their propensity for strictness or liberality or eroticism or
carelessness during the course of valuation.
further corrective steps become necessary. (iii) After the valuation is
completed by the examiners, the Head Examiner conducts a random sample survey
of the corrected answer scripts to verify whether the norms evolved in the
meetings of examiner have actually been followed by the examiners........... (iv)
After ascertaining or assessing the standards adopted by each examiner, the Head
Examiner may confirm the award of marks without any change if the examiner has followed
the agreed norms, or suggest upward or downward moderation, the quantum of moderation
varying according to the degree of liberality or strictness in marking. In
regard to the top level answer books revalued by the Head Examiner, his award
of marks is accepted as final.
As regards the other
answer books below the top level, to achieve maximum measure of uniformity inter
se the examiners, the awards are moderated as per the recommendations made by
the Head Examiner. (v) If in the opinion of the Head Examiner there has been erratic
or careless marking by any examiner, for which it is not feasible to have any
standard moderation, the answer scripts valued by such examiner are revalued
either by the Head Examiner or any other Examiner who is found to have followed
the agreed norms. (vi) Where the number of candidates is very large and the
examiners are numerous, it may be difficult for one Head Examiner to assess the
work of all the Examiners. In such a situation, one more level of Examiners is
introduced. For every ten or twenty examiners, there will be a Head Examiner who
checks the random samples as above.
The work of the Head
Examiners, in turn, is checked by a Chief Examiner to ensure proper results. The
above procedure of 'moderation' would bring in considerable uniformity and
consistency. It should be noted that absolute uniformity or consistency in
valuation is impossible to achieve where there are several examiners and the
effort is only to achieve maximum uniformity." 25Each examining body will
have its own standards of `moderation', drawn up with reference to its own experiences
and the nature and scope of the examinations conducted by it. ICAI shall have
to disclose the said standards of moderation followed by it, if it has drawn up
the same, in response to part (ii) of first respondent's query (13).
its communication dated 22.2.2008, ICAI informed the first respondent that under
Regulation 39(2), its Examining Committee had the authority to revise the marks
based on the findings of the Head Examiners and any incidental information in
its knowledge. This answers part (iv) of query (13) as to the authority which
decides the exercise of the discretion to make the revision under Regulation 39(2).
regard to parts (i), (iii) and (v) of query (13), ICAI submits that such data is
not maintained. Reliance is placed upon the following observations of this
Court in Aditya Bandopadhyay: "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."As the information sought under parts (i),
(iii) and (v) of query (13) are not maintained and is not available in the form
of data with the appellant in its records, ICAI is not bound to furnish the
same. General submissions of ICAI
learned counsel of ICAI submitted that there are several hundred examining
bodies in the country. With the aspirations of young citizens to secure seats in
institutions of higher learning or to qualify for certain professions or to
secure jobs, more and more persons participate in more and more examinations. It
is quite common for an examining body to conduct examinations for lakhs of candidates
that too more than once per year. Conducting examinations involving preparing the
question papers, conducting the examinations at various centres all over the
country, getting the answer scripts evaluated and declaring results, is an immense
task for examining bodies, to be completed within fixed time schedules.
If the examining bodies
are required to frequently furnish various kinds of information as sought in this
case to several applicants, it will add an enormous work load and their
existing staff will not be able to cope up with the additional work involved in
furnishing information under the RTI Act. It was submitted by ICAI that it conducts
several examinations every year where more than four lakhs candidates
participate; that out of them, about 15-16% are successful, which means that
more than three and half lakhs of candidates are unsuccessful; that if even one
percent at those unsuccessful candidates feel dissatisfied with the results and
seek all types of unrelated information, the working of ICAI will come to a
It was submitted that
for every meaningful user of RTI Act, there are several abusers who will attempt
to disrupt the functioning of the examining bodies by seeking huge quantity of information.
ICAI submits that the application by the first respondent is a classic case of
improper use of the Act, where a candidate who has failed in an examination and
who does not even choose to take the subsequent examination has been engaging
ICAI in a prolonged litigation by seeking a bundle of information none of which
is relevant to decide whether his answer script was properly evaluated, nor have
any bearing on accountability or reducing corruption. ICAI submits that there
should be an effective control and screening of applications for information by
the competent authorities under the Act.
We do not agree that
first respondent had indulged in improper use of RTI Act. His application is intended
to bring about transparency and accountability in the functioning of ICAI. How 28far
he is entitled to the information is a different issue. Examining bodies like
ICAI should change their old mindsets and tune them to the new regime of disclosure
of maximum information. Public authorities should realize that in an era of
transparency, previous practices of unwarranted secrecy have no longer a place.
Accountability and prevention of corruption is possible only through transparency.
Attaining transparency no doubt would involve additional work with reference to
maintaining records and furnishing information. Parliament has enacted the RTI Act
providing access to information, after great debate and deliberations by the
Civil Society and the Parliament.
In its wisdom, the
Parliament has chosen to exempt only certain categories of information from
disclosure and certain organizations from the applicability of the Act. As the
examining bodies have not been exempted, and as the examination processes of examining
bodies have not been exempted, the examining bodies will have to gear themselves
to comply with the provisions of the RTI Act. Additional workload is not a
defence. If there are practical insurmountable difficulties, it is open to the examining
bodies to bring them to the notice of the government for consideration so that
any changes to the Act can be deliberated upon. Be that as it may.
however agree that it is necessary to make a distinction in regard to
information intended to bring transparency, to improve accountability and 29to reduce
corruption, falling under section 4(1)(b) and (c) and other information which may
not have a bearing on accountability or reducing corruption. The competent authorities
under the RTI Act will have to maintain a proper balance so that while
achieving transparency, the demand for information does not reach unmanageable proportions
affecting other public interests, which include efficient operation of public
authorities and government, preservation of confidentiality of sensitive information
and optimum use of limited fiscal resources.
view of the above, this appeal is allowed in part and the order of the High
Court is set aside and the order of the CIC is restored, subject to one modification
in regard to query (13): ICAI to disclose to the first respondent, the standard
criteria, if any, relating to moderation, employed by it, for the purpose of
making revisions under Regulation 39(2).
(R V Raveendran)
(A K Patnaik)