Central Board of
Secondary Education & ANR. Vs. Aditya Bandopadhyay & Ors.
J U D G M E N T
R.V.RAVEENDRAN, J.
1.
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 `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 3India; (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.
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 totaling 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 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 5books 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 6different 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 8inspection 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. 9Feeling 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 10books)
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.
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 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 13that 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: "
1.
2.
3.
4.
5.
6.
7.
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;
(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 the date on
which any request is made under section 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 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;
(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 19and
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 20under 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. 22Resultantly, 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.
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 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 ... 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 25student 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- 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 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 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."
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 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 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 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 34the 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 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 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 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 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 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 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 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 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 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 44be 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 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;
(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) 47Sub-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. 48The 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 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’ 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 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- 52sections
(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 53eradication 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 54Act 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.
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