ITEM NO.1A COURT NO.3 SECTION XVI
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.6454 of 2011)
(Arising out of SLP (Civil) No(s).7526/2009)
CENTRLAL BOARD OF SEC.EDUCATION & ANR. Petitioner(s)
VERSUS
ADITYA BANDOPADHYAY & ORS. Respondent(s)
WITH
Civil Appeal No.6456 of 2011(@ SLP(C) NO. 9755 of 2009)
Civil Appeal No.6457-6458 of 2011
@ SLP(C) NO. 11162-11163 of 2009)
Civil Appeal No.6459 of 2011 (@ SLP(C) NO. 9776 of 2010)
Civil Appeal No.6461 of 2011 (@ SLP(C) NO. 11670 of 2009)
Civil Appeal No.6462 of 2011 (@ SLP(C) NO. 13673 of 2009)
Civil Appeal No.6464 of 2011 (@ SLP(C) NO. 17409 of 2009)
Civil Appeal No.6465-6468 of 2011
(@ SLP(C) NO. 30858-30861 of 2009)
Date: 09/08/2011 These petitions were called on for
judgment today.
For Petitioner(s)
Mr. Tara Chandra Sharma,Adv.
Mr. Pramod Dayal,Adv.
Mr. Rajiv Mehta,Adv.
Mr. Shankar Divate,Adv.
Mr. Mithilesh Kumar Singh,Adv.
For Respondent(s) Ms. Rekha Pandey,Adv.
Mr. L.C. Agrawala,Adv.
Mr. Sunil Kumar Verma,Adv.
Mr. Mithilesh Kumar Singh,Adv.
- 2 -
Mr. Rameshwar Prasad Goyal,Adv.
Mr. Divya Jyoti Jaipuriar,Adv.
Ms. Jyoti Mendiratta,Adv.
Mr. Navin Prakash,Adv.
Mr. D.M. Nargolkar,Adv.
Mr. Abhijit Sengupta,Adv.
Hon'ble Mr. Justice R.V. Raveendran pronounced
the judgment of the Bench comprising of His Lordship
and Hon'ble Mr. Justice A.K. Patnaik.
Appeal are disposed in terms of the signed
reportable judgment.
All IAs are disposed of.
( O.P. Sharma ) ( M.S. Negi )
Court Master Court Master
[Signed reportable judgment is placed on the file]
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. ...
Appellants
Vs.
Aditya Bandopadhyay & Ors. ...
Respondents
With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)
J U D G M E N T
R.V.RAVEENDRAN, J.
Leave granted. For convenience, we will refer to the
facts of the first case.
2. The first respondent appeared for the Secondary School
Examination, 2008 conducted by the Central Board of
Secondary Education (for short `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
2
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 India; (b) for a direction to CBSE
to appoint an independent examiner for re-evaluating his
answer-books and issue a fresh marks card on the basis of
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re-evaluation; (c) for a direction to CBSE to produce his
answer-books in regard to the 2008 Secondary School
Examination so that they could be properly reviewed and
fresh marks card can be issued with re-evaluation marks;
(d) for quashing the communication of CBSE dated 12.7.2008
and for a direction to produce the answer-books into court
for inspection by the first respondent. The respondent
contended that section 8(1)(e) of Right to Information Act,
2005 (`RTI Act' for short) relied upon by CBSE was not
applicable and relied upon the provisions of the RTI Act to
claim inspection.
4. CBSE resisted the petition. It contended that as per
its Bye-laws, re-evaluation and inspection of answer-books
were impermissible and what was permissible was only
verification of marks. They relied upon the CBSE
Examination Bye-law No.61, relevant portions of which are
extracted below:
"61. Verification of marks obtained by a
Candidate in a subject
(i) A candidate who has appeared at an
examination conducted by the Board may apply to
the concerned Regional Officer of the Board for
verification of marks in any particular subject.
The verification will be restricted to checking
whether all the answer's have been evaluated and
that there has been no mistake in the totalling
of marks for each question in that subject and
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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)
5
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
books only for a period of three months after which they
are disposed of. It was submitted that if candidates were
to be permitted to seek re-evaluation of answer books or
inspection thereof, it will create confusion and chaos,
subjecting its elaborate system of examinations to delay
and disarray. It was stated that apart from class X and
class XII examinations, CBSE also conducts several other
examinations (including the All India Pre-Medical Test, All
India Engineering Entrance Examination and Jawahar Navodaya
Vidyalaya's Selection Test). If CBSE was required to re-
evaluate the answer-books or grant inspection of answer-
books or grant certified copies thereof, it would interfere
with its effective and efficient functioning, and will also
require huge additional staff and infrastructure. It was
submitted that the entire examination system and evaluation
by CBSE is done in a scientific and systemic manner
designed to ensure and safeguard the high academic
standards and at each level utmost care was taken to
6
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 different
schools in different categories. After assessing
the papers from every point of view, the team of
moderators gives a declaration whether the whole
syllabus is covered by a set of question papers,
whether the distribution of difficulty level of
all the sets is parallel and various other
aspects to ensure uniform standard. The Board
also issues detailed instructions for the
guidance of the moderators in order to ensure
uniform criteria for assessment.
The evaluation system on the whole is well
organized and fool-proof. All the candidates are
examined through question papers set by the same
paper setters. Their answer books are marked with
fictitious roll numbers so as to conceal their
identity. The work of allotment of fictitious
roll number is carried out by a team working
under a Chief Secrecy Officer having full
autonomy. The Chief Secrecy Officer and his team
of assistants are academicians drawn from the
Universities and other autonomous educational
bodies not connected with the Board. The Chief
Secrecy Officer himself is usually a person of
the rank of a University professor. No official
of the Board at the Central or Regional level is
associated with him in performance of the task
7
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 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.
8
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."
9
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 inspection or grant of
copies cannot be considered to be denial of fair play or
unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed
of the said writ petition along with the connected writ
petitions (relied by West Bengal Board of Secondary
Education and others) by a common judgment dated 5.2.2009.
The High Court held that the evaluated answer-books of an
examinee writing a public examination conducted by
statutory bodies like CBSE or any University or Board of
Secondary Education, being a `document, manuscript record,
and opinion' fell within the definition of "information" as
defined in section 2(f) of the RTI Act. It held that the
provisions of the RTI Act should be interpreted in a manner
which would lead towards dissemination of information
rather than withholding the same; and in view of the right
to information, the examining bodies were bound to provide
inspection of evaluated answer books to the examinees.
Consequently it directed CBSE to grant inspection of the
10
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. Feeling aggrieved by the
direction to grant inspection, CBSE has filed this appeal
by special leave.
6. Before us the CBSE contended that the High Court erred
in (i) directing CBSE to permit inspection of the evaluated
answer books, as that would amount to requiring CBSE to
disobey its Examination Bye-law 61(4), which provided that
no candidate shall claim or be entitled to re-evaluation of
answer books or disclosure/inspection of answer books; (ii)
holding that Bye-law 61(4) was not binding upon the
examinees, in view of the overriding effect of the
provisions of the RTI Act, even though the validity of that
bye-law had not been challenged; (iii) not following the
decisions of this court in Maharashtra State Board of
Secondary Education vs. Paritosh B. Sheth [1984 (4) SCC
27], Parmod Kumar Srivastava vs. Chairman, Bihar PAC [2004
(6) SCC 714], Board of Secondary Education vs. Pavan Ranjan
P [2004 (13) SCC 383], Board of Secondary Education vs. S
11
[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 books) in
a fiduciary relationship and therefore exempted under
section 8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission
contended that the object of the RTI Act is to ensure
maximum disclosure of information and minimum exemptions
from disclosure; that an examining body does not hold the
evaluated answer books, in any fiduciary relationship
either with the student or the examiner; and that the
information sought by any examinee by way of inspection of
his answer books, will not fall under any of the exempted
categories of information enumerated in section 8 of the
RTI Act. It was submitted that an examining body being a
public authority holding the `information', that is, the
evaluated answer-books, and the inspection of answer-books
sought by the examinee being exercise of `right to
12
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?
13
(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
14
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 that the RTI Act gives a right to a
citizen to only access information, but not seek any
consequential relief based on such information. Section 4
deals with obligations of public authorities to maintain
the records in the manner provided and publish and
disseminate the information in the manner provided. Section
6 deals with requests for obtaining information. It
provides that applicant making a request for information
shall not be required to give any reason for requesting the
information or any personal details except those that may
be necessary for contacting him. Section 8 deals with
15
exemption from disclosure of information and is extracted
in its entirety:
"8. Exemption from disclosure of information --
(1) Notwithstanding anything contained in this
Act, there shall be no obligation to give any
citizen,-
(a) information, disclosure of which would
prejudicially affect the sovereignty and
integrity of India, the security, strategic,
scientific or economic interests of the State,
relation with foreign State or lead to incitement
of an offence;
(b) information which has been expressly
forbidden to be published by any court of law or
tribunal or the disclosure of which may
constitute contempt of court;
(c) information, the disclosure of which would
cause a breach of privilege of Parliament or the
State Legislature;
(d) information including commercial confidence,
trade secrets or intellectual property, the
disclosure of which would harm the competitive
position of a third party, unless the competent
authority is satisfied that larger public
interest warrants the disclosure of such
information;
(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;
16
(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
17
made under secton 6 shall be provided to any
person making a request under that section:
Provided that where any question arises as to the
date from which the said period of twenty years
has to be computed, the decision of the Central
Government shall be final, subject to the usual
appeals provided for in this Act."
(emphasis supplied)
Section 9 provides that without prejudice to the provisions
of section 8, a request for information may be rejected if
such a request for providing access would involve an
infringement of copyright. Section 10 deals with
severability of exempted information and sub-section (1)
thereof is extracted below:
"(1) Where a request for access to information is
rejected on the ground that it is in relation to
information which is exempt from disclosure,
then, notwithstanding anything contained in this
Act, access may be provided to that part of the
record which does not contain any information
which is exempt from disclosure under this Act
and which can reasonably be severed from any part
that contains exempt information."
Section 11 deals with third party information and sub-
section (1) thereof is extracted below:
"(1) Where a Central Public Information Officer
or a State Public Information Officer, as the
case may be, intends to disclose any information
or record, or part thereof on a request made
under this Act, which relates to or has been
supplied by a third party and has been treated as
18
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 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-
19
(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
20
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:
"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:
21
"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 and expression" as
contained in Article 19(1)(a) of the Constitution of India
22
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 under
23
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
24
reference to allegations of corruption and human
rights violations).
(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
25
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. Resultantly, unless the examining bodies are
able to demonstrate that the evaluated answer-books fall
under any of the categories of exempted `information'
enumerated in clauses (a) to (j) of sub-section (1) section
8, they will be bound to provide access to the information
and any applicant can either inspect the document/record,
take notes, extracts or obtain certified copies thereof.
14. The examining bodies contend that the evaluated
answer-books are exempted from disclosure under section
8(1)(e) of the RTI Act, as they are `information' held in
its fiduciary relationship. They fairly conceded that
evaluated answer-books will not fall under any other
exemptions in sub-section (1) of section 8. Every examinee
will have the right to access his evaluated answer-books,
by either inspecting them or take certified copies thereof,
unless the evaluated answer-books are found to be exempted
under section 8(1)(e) of the RTI Act.
Re : Question (ii)
26
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
27
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...."
28
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 student is
entitled to fair play in examination and receive marks
matching his performance, this court held :
"What constitutes fair play depends upon the
facts and circumstances relating to each
particular given situation. If it is found that
every possible precaution has been taken and all
necessary safeguards provided to ensure that the
answer books inclusive of supplements are kept in
safe custody so as to eliminate the danger of
their being tampered with and that the evaluation
is done by the examiners applying uniform
standards with checks and crosschecks at
different stages and that measures for detection
29
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 :
"... 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
30
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
31
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
32
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)
33
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
34
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
35
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
36
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
37
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-à-vis another partner and an employer
vis-à-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
38
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
39
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
the examining body and the examinee, with reference to the
evaluated answer-books, that come into the custody of the
examining body.
23. The duty of examining bodies is to subject the
candidates who have completed a course of study or a period
of training in accordance with its curricula, to a process
of verification/examination/testing of their knowledge,
ability or skill, or to ascertain whether they can be said
to have successfully completed or passed the course of
study or training. Other specialized Examining Bodies may
simply subject candidates to a process of verification by
an examination, to find out whether such person is suitable
for a particular post, job or assignment. An examining
body, if it is a public authority entrusted with public
functions, is required to act fairly, reasonably, uniformly
and consistently for public good and in public interest.
This Court has explained the role of an examining body in
regard to the process of holding examination in the context
of examining whether it amounts to `service' to a consumer,
40
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 ........."
41
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
42
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
43
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.
44
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,
45
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.
46
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
47
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-
48
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
49
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,
50
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 be available after twenty years in regard to
records which are required to be preserved for more than
twenty years. Where any record or information is required
to be destroyed under the rules and regulations of a public
authority prior to twenty years, section 8(3) will not
prevent destruction in accordance with the Rules. Section
8(3) of RTI Act is not therefore a provision requiring all
`information' to be preserved and maintained for twenty
years or more, nor does it override any rules or
regulations governing the period for which the record,
document or information is required to be preserved by any
public authority.
31. The effect of the provisions and scheme of the RTI Act
is to divide `information' into the three categories. They
are :
(i) Information which promotes transparency and
accountability in the working of every public
51
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 :
52
"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;
53
(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)
54
Sub-sections (2), (3) and (4) of section 4 relating to
dissemination of information enumerated in sections 4(1)(b)
& (c) are extracted below:
"(2) It shall be a constant endeavour of every
public authority to take steps in accordance with
the requirements of clause (b) of sub-section (1)
to provide as much information suo motu to the
public at regular intervals through various means
of communications, including internet, so that
the public have minimum resort to the use of this
Act to obtain information.
(3) For the purposes of sub-section (1), every
information shall be disseminated widely and in
such form and manner which is easily accessible
to the public.
(4) All materials shall be disseminated taking
into consideration the cost effectiveness, local
language and the most effective method of
communication in that local area and the
information should be easily accessible, to the
extent possible in electronic format with the
Central Public Information Officer or State
Public Information Officer, as the case may be,
available free or at such cost of the medium or
the print cost price as may be prescribed.
Explanation.--For the purposes of sub-sections
(3) and (4), "disseminated" means making known or
communicated the information to the public
through notice boards, newspapers, public
announcements, media broadcasts, the internet or
any other means, including inspection of offices
of any public authority."
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act
is in the nature of an exception to section 3 which
empowers the citizens with the right to information, which
is a derivative from the freedom of speech; and that
55
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. The other is to ensure
that the revelation of information, in actual practice,
does not conflict with other public interests which include
efficient operation of the governments, optimum use of
limited fiscal resources and preservation of
confidentiality of sensitive information. The preamble to
the Act specifically states that the object of the Act is
to harmonise these two conflicting interests. While
sections 3 and 4 seek to achieve the first objective,
sections 8, 9, 10 and 11 seek to achieve the second
objective. Therefore when section 8 exempts certain
information from being disclosed, it should not be
considered to be a fetter on the right to information, but
as an equally important provision protecting other public
interests essential for the fulfilment and preservation of
democratic ideals.
56
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
57
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
58
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
59
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-sections (3) and (4) of section 4 of the Act. If the
`information' enumerated in clause (b) of section 4(1) of
the Act are effectively disseminated (by publications in
print and on websites and other effective means), apart
60
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
eradication of corruption) would be counter-productive as
61
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
62
the clarifications regarding the scope of the RTI Act and
the safeguards and conditions subject to which
`information' should be furnished. The appeals are disposed
of accordingly.
..................J
[R. V. Raveendran]
..................J
[A. K. Patnaik]
New Delhi;
August 9, 2011.
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.6454 of 2011)
(Arising out of SLP (Civil) No(s).7526/2009)
CENTRLAL BOARD OF SEC.EDUCATION & ANR. Petitioner(s)
VERSUS
ADITYA BANDOPADHYAY & ORS. Respondent(s)
WITH
Civil Appeal No.6456 of 2011(@ SLP(C) NO. 9755 of 2009)
Civil Appeal No.6457-6458 of 2011
@ SLP(C) NO. 11162-11163 of 2009)
Civil Appeal No.6459 of 2011 (@ SLP(C) NO. 9776 of 2010)
Civil Appeal No.6461 of 2011 (@ SLP(C) NO. 11670 of 2009)
Civil Appeal No.6462 of 2011 (@ SLP(C) NO. 13673 of 2009)
Civil Appeal No.6464 of 2011 (@ SLP(C) NO. 17409 of 2009)
Civil Appeal No.6465-6468 of 2011
(@ SLP(C) NO. 30858-30861 of 2009)
Date: 09/08/2011 These petitions were called on for
judgment today.
For Petitioner(s)
Mr. Tara Chandra Sharma,Adv.
Mr. Pramod Dayal,Adv.
Mr. Rajiv Mehta,Adv.
Mr. Shankar Divate,Adv.
Mr. Mithilesh Kumar Singh,Adv.
For Respondent(s) Ms. Rekha Pandey,Adv.
Mr. L.C. Agrawala,Adv.
Mr. Sunil Kumar Verma,Adv.
Mr. Mithilesh Kumar Singh,Adv.
- 2 -
Mr. Rameshwar Prasad Goyal,Adv.
Mr. Divya Jyoti Jaipuriar,Adv.
Ms. Jyoti Mendiratta,Adv.
Mr. Navin Prakash,Adv.
Mr. D.M. Nargolkar,Adv.
Mr. Abhijit Sengupta,Adv.
Hon'ble Mr. Justice R.V. Raveendran pronounced
the judgment of the Bench comprising of His Lordship
and Hon'ble Mr. Justice A.K. Patnaik.
Appeal are disposed in terms of the signed
reportable judgment.
All IAs are disposed of.
( O.P. Sharma ) ( M.S. Negi )
Court Master Court Master
[Signed reportable judgment is placed on the file]
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. ...
Appellants
Vs.
Aditya Bandopadhyay & Ors. ...
Respondents
With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)
J U D G M E N T
R.V.RAVEENDRAN, J.
Leave granted. For convenience, we will refer to the
facts of the first case.
2. The first respondent appeared for the Secondary School
Examination, 2008 conducted by the Central Board of
Secondary Education (for short `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
2
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 India; (b) for a direction to CBSE
to appoint an independent examiner for re-evaluating his
answer-books and issue a fresh marks card on the basis of
3
re-evaluation; (c) for a direction to CBSE to produce his
answer-books in regard to the 2008 Secondary School
Examination so that they could be properly reviewed and
fresh marks card can be issued with re-evaluation marks;
(d) for quashing the communication of CBSE dated 12.7.2008
and for a direction to produce the answer-books into court
for inspection by the first respondent. The respondent
contended that section 8(1)(e) of Right to Information Act,
2005 (`RTI Act' for short) relied upon by CBSE was not
applicable and relied upon the provisions of the RTI Act to
claim inspection.
4. CBSE resisted the petition. It contended that as per
its Bye-laws, re-evaluation and inspection of answer-books
were impermissible and what was permissible was only
verification of marks. They relied upon the CBSE
Examination Bye-law No.61, relevant portions of which are
extracted below:
"61. Verification of marks obtained by a
Candidate in a subject
(i) A candidate who has appeared at an
examination conducted by the Board may apply to
the concerned Regional Officer of the Board for
verification of marks in any particular subject.
The verification will be restricted to checking
whether all the answer's have been evaluated and
that there has been no mistake in the totalling
of marks for each question in that subject and
4
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)
5
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
books only for a period of three months after which they
are disposed of. It was submitted that if candidates were
to be permitted to seek re-evaluation of answer books or
inspection thereof, it will create confusion and chaos,
subjecting its elaborate system of examinations to delay
and disarray. It was stated that apart from class X and
class XII examinations, CBSE also conducts several other
examinations (including the All India Pre-Medical Test, All
India Engineering Entrance Examination and Jawahar Navodaya
Vidyalaya's Selection Test). If CBSE was required to re-
evaluate the answer-books or grant inspection of answer-
books or grant certified copies thereof, it would interfere
with its effective and efficient functioning, and will also
require huge additional staff and infrastructure. It was
submitted that the entire examination system and evaluation
by CBSE is done in a scientific and systemic manner
designed to ensure and safeguard the high academic
standards and at each level utmost care was taken to
6
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 different
schools in different categories. After assessing
the papers from every point of view, the team of
moderators gives a declaration whether the whole
syllabus is covered by a set of question papers,
whether the distribution of difficulty level of
all the sets is parallel and various other
aspects to ensure uniform standard. The Board
also issues detailed instructions for the
guidance of the moderators in order to ensure
uniform criteria for assessment.
The evaluation system on the whole is well
organized and fool-proof. All the candidates are
examined through question papers set by the same
paper setters. Their answer books are marked with
fictitious roll numbers so as to conceal their
identity. The work of allotment of fictitious
roll number is carried out by a team working
under a Chief Secrecy Officer having full
autonomy. The Chief Secrecy Officer and his team
of assistants are academicians drawn from the
Universities and other autonomous educational
bodies not connected with the Board. The Chief
Secrecy Officer himself is usually a person of
the rank of a University professor. No official
of the Board at the Central or Regional level is
associated with him in performance of the task
7
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 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.
8
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."
9
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 inspection or grant of
copies cannot be considered to be denial of fair play or
unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed
of the said writ petition along with the connected writ
petitions (relied by West Bengal Board of Secondary
Education and others) by a common judgment dated 5.2.2009.
The High Court held that the evaluated answer-books of an
examinee writing a public examination conducted by
statutory bodies like CBSE or any University or Board of
Secondary Education, being a `document, manuscript record,
and opinion' fell within the definition of "information" as
defined in section 2(f) of the RTI Act. It held that the
provisions of the RTI Act should be interpreted in a manner
which would lead towards dissemination of information
rather than withholding the same; and in view of the right
to information, the examining bodies were bound to provide
inspection of evaluated answer books to the examinees.
Consequently it directed CBSE to grant inspection of the
10
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. Feeling aggrieved by the
direction to grant inspection, CBSE has filed this appeal
by special leave.
6. Before us the CBSE contended that the High Court erred
in (i) directing CBSE to permit inspection of the evaluated
answer books, as that would amount to requiring CBSE to
disobey its Examination Bye-law 61(4), which provided that
no candidate shall claim or be entitled to re-evaluation of
answer books or disclosure/inspection of answer books; (ii)
holding that Bye-law 61(4) was not binding upon the
examinees, in view of the overriding effect of the
provisions of the RTI Act, even though the validity of that
bye-law had not been challenged; (iii) not following the
decisions of this court in Maharashtra State Board of
Secondary Education vs. Paritosh B. Sheth [1984 (4) SCC
27], Parmod Kumar Srivastava vs. Chairman, Bihar PAC [2004
(6) SCC 714], Board of Secondary Education vs. Pavan Ranjan
P [2004 (13) SCC 383], Board of Secondary Education vs. S
11
[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 books) in
a fiduciary relationship and therefore exempted under
section 8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission
contended that the object of the RTI Act is to ensure
maximum disclosure of information and minimum exemptions
from disclosure; that an examining body does not hold the
evaluated answer books, in any fiduciary relationship
either with the student or the examiner; and that the
information sought by any examinee by way of inspection of
his answer books, will not fall under any of the exempted
categories of information enumerated in section 8 of the
RTI Act. It was submitted that an examining body being a
public authority holding the `information', that is, the
evaluated answer-books, and the inspection of answer-books
sought by the examinee being exercise of `right to
12
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?
13
(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
14
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 that the RTI Act gives a right to a
citizen to only access information, but not seek any
consequential relief based on such information. Section 4
deals with obligations of public authorities to maintain
the records in the manner provided and publish and
disseminate the information in the manner provided. Section
6 deals with requests for obtaining information. It
provides that applicant making a request for information
shall not be required to give any reason for requesting the
information or any personal details except those that may
be necessary for contacting him. Section 8 deals with
15
exemption from disclosure of information and is extracted
in its entirety:
"8. Exemption from disclosure of information --
(1) Notwithstanding anything contained in this
Act, there shall be no obligation to give any
citizen,-
(a) information, disclosure of which would
prejudicially affect the sovereignty and
integrity of India, the security, strategic,
scientific or economic interests of the State,
relation with foreign State or lead to incitement
of an offence;
(b) information which has been expressly
forbidden to be published by any court of law or
tribunal or the disclosure of which may
constitute contempt of court;
(c) information, the disclosure of which would
cause a breach of privilege of Parliament or the
State Legislature;
(d) information including commercial confidence,
trade secrets or intellectual property, the
disclosure of which would harm the competitive
position of a third party, unless the competent
authority is satisfied that larger public
interest warrants the disclosure of such
information;
(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;
16
(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
17
made under secton 6 shall be provided to any
person making a request under that section:
Provided that where any question arises as to the
date from which the said period of twenty years
has to be computed, the decision of the Central
Government shall be final, subject to the usual
appeals provided for in this Act."
(emphasis supplied)
Section 9 provides that without prejudice to the provisions
of section 8, a request for information may be rejected if
such a request for providing access would involve an
infringement of copyright. Section 10 deals with
severability of exempted information and sub-section (1)
thereof is extracted below:
"(1) Where a request for access to information is
rejected on the ground that it is in relation to
information which is exempt from disclosure,
then, notwithstanding anything contained in this
Act, access may be provided to that part of the
record which does not contain any information
which is exempt from disclosure under this Act
and which can reasonably be severed from any part
that contains exempt information."
Section 11 deals with third party information and sub-
section (1) thereof is extracted below:
"(1) Where a Central Public Information Officer
or a State Public Information Officer, as the
case may be, intends to disclose any information
or record, or part thereof on a request made
under this Act, which relates to or has been
supplied by a third party and has been treated as
18
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 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-
19
(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
20
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:
"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:
21
"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 and expression" as
contained in Article 19(1)(a) of the Constitution of India
22
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 under
23
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
24
reference to allegations of corruption and human
rights violations).
(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
25
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. Resultantly, unless the examining bodies are
able to demonstrate that the evaluated answer-books fall
under any of the categories of exempted `information'
enumerated in clauses (a) to (j) of sub-section (1) section
8, they will be bound to provide access to the information
and any applicant can either inspect the document/record,
take notes, extracts or obtain certified copies thereof.
14. The examining bodies contend that the evaluated
answer-books are exempted from disclosure under section
8(1)(e) of the RTI Act, as they are `information' held in
its fiduciary relationship. They fairly conceded that
evaluated answer-books will not fall under any other
exemptions in sub-section (1) of section 8. Every examinee
will have the right to access his evaluated answer-books,
by either inspecting them or take certified copies thereof,
unless the evaluated answer-books are found to be exempted
under section 8(1)(e) of the RTI Act.
Re : Question (ii)
26
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
27
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...."
28
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 student is
entitled to fair play in examination and receive marks
matching his performance, this court held :
"What constitutes fair play depends upon the
facts and circumstances relating to each
particular given situation. If it is found that
every possible precaution has been taken and all
necessary safeguards provided to ensure that the
answer books inclusive of supplements are kept in
safe custody so as to eliminate the danger of
their being tampered with and that the evaluation
is done by the examiners applying uniform
standards with checks and crosschecks at
different stages and that measures for detection
29
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 :
"... 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
30
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
31
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
32
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)
33
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
34
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
35
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
36
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
37
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-à-vis another partner and an employer
vis-à-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
38
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
39
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
the examining body and the examinee, with reference to the
evaluated answer-books, that come into the custody of the
examining body.
23. The duty of examining bodies is to subject the
candidates who have completed a course of study or a period
of training in accordance with its curricula, to a process
of verification/examination/testing of their knowledge,
ability or skill, or to ascertain whether they can be said
to have successfully completed or passed the course of
study or training. Other specialized Examining Bodies may
simply subject candidates to a process of verification by
an examination, to find out whether such person is suitable
for a particular post, job or assignment. An examining
body, if it is a public authority entrusted with public
functions, is required to act fairly, reasonably, uniformly
and consistently for public good and in public interest.
This Court has explained the role of an examining body in
regard to the process of holding examination in the context
of examining whether it amounts to `service' to a consumer,
40
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 ........."
41
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
42
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
43
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.
44
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,
45
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.
46
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
47
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-
48
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
49
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,
50
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 be available after twenty years in regard to
records which are required to be preserved for more than
twenty years. Where any record or information is required
to be destroyed under the rules and regulations of a public
authority prior to twenty years, section 8(3) will not
prevent destruction in accordance with the Rules. Section
8(3) of RTI Act is not therefore a provision requiring all
`information' to be preserved and maintained for twenty
years or more, nor does it override any rules or
regulations governing the period for which the record,
document or information is required to be preserved by any
public authority.
31. The effect of the provisions and scheme of the RTI Act
is to divide `information' into the three categories. They
are :
(i) Information which promotes transparency and
accountability in the working of every public
51
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 :
52
"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;
53
(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)
54
Sub-sections (2), (3) and (4) of section 4 relating to
dissemination of information enumerated in sections 4(1)(b)
& (c) are extracted below:
"(2) It shall be a constant endeavour of every
public authority to take steps in accordance with
the requirements of clause (b) of sub-section (1)
to provide as much information suo motu to the
public at regular intervals through various means
of communications, including internet, so that
the public have minimum resort to the use of this
Act to obtain information.
(3) For the purposes of sub-section (1), every
information shall be disseminated widely and in
such form and manner which is easily accessible
to the public.
(4) All materials shall be disseminated taking
into consideration the cost effectiveness, local
language and the most effective method of
communication in that local area and the
information should be easily accessible, to the
extent possible in electronic format with the
Central Public Information Officer or State
Public Information Officer, as the case may be,
available free or at such cost of the medium or
the print cost price as may be prescribed.
Explanation.--For the purposes of sub-sections
(3) and (4), "disseminated" means making known or
communicated the information to the public
through notice boards, newspapers, public
announcements, media broadcasts, the internet or
any other means, including inspection of offices
of any public authority."
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act
is in the nature of an exception to section 3 which
empowers the citizens with the right to information, which
is a derivative from the freedom of speech; and that
55
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. The other is to ensure
that the revelation of information, in actual practice,
does not conflict with other public interests which include
efficient operation of the governments, optimum use of
limited fiscal resources and preservation of
confidentiality of sensitive information. The preamble to
the Act specifically states that the object of the Act is
to harmonise these two conflicting interests. While
sections 3 and 4 seek to achieve the first objective,
sections 8, 9, 10 and 11 seek to achieve the second
objective. Therefore when section 8 exempts certain
information from being disclosed, it should not be
considered to be a fetter on the right to information, but
as an equally important provision protecting other public
interests essential for the fulfilment and preservation of
democratic ideals.
56
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
57
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
58
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
59
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-sections (3) and (4) of section 4 of the Act. If the
`information' enumerated in clause (b) of section 4(1) of
the Act are effectively disseminated (by publications in
print and on websites and other effective means), apart
60
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
eradication of corruption) would be counter-productive as
61
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
62
the clarifications regarding the scope of the RTI Act and
the safeguards and conditions subject to which
`information' should be furnished. The appeals are disposed
of accordingly.
..................J
[R. V. Raveendran]
..................J
[A. K. Patnaik]
New Delhi;
August 9, 2011.