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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7571 OF 2011
[Arising out of SLP (C) No.2040/2011]
The Institute of Chartered Accountants of India ... Appellant
Vs.
Shaunak H.Satya & Ors. ... Respondents
J U D G M E N T
R.V.RAVEENDRAN,J.
Leave granted.
2. The appellant Institute of Chartered Accountants of India (for short
`ICAI') is a body corporate established under section 3 of the Chartered
Accountants Act, 1949. One of the functions of the appellant council is to
conduct the examination of candidates for enrolment as Chartered
Accountants. The first respondent appeared in the Chartered Accountants'
final examination conducted by ICAI in November, 2007. The results were
declared in January 2008. The first respondent who was not successful in the
examination applied for verification of marks. The appellant carried out the
verification in accordance with the provisions of the Chartered Accountants
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Regulations, 1988 and found that there was no discrepancy in evaluation of
answerscripts. The appellant informed the first respondent accordingly.
3. On 18.1.2008 the appellant submitted an application seeking the
following information under 13 heads, under the Right to Information Act,
2005 (`RTI Act' for short) :
"1) Educational qualification of the examiners & Moderators with subject
wise classifications. (you may not give me the names of the examiners &
moderators).
2) Procedure established for evaluation of exam papers.
3) Instructions issued to the examiners, and moderators oral as well as
written if any.
4) Procedure established for selection of examiners & moderators.
5) Model answers if any given to the examiners & moderators if any.
6) Remuneration paid to the examiners & moderators.
7) Number of students appearing for exams at all levels in the last 2 years
(i.e. PE1/PE2/PCC/CPE/Final with break up)
8) Number of students that passed at the 1st attempt from the above.
9) From the number of students that failed in the last 2 years (i.e.
PE1/PE2/PCC/CPE/Final with break up) from the above, how many
students opted for verification of marks as per regulation 38.
10) Procedure adopted at the time of verification of marks as above.
11) Number of students whose marks were positively changed out of those
students that opted for verification of marks.
12) Educational qualifications of the persons performing the verification
of marks under Regulation 38 & remuneration paid to them.
13) Number of times that the council has revised the marks of any
candidate, or any class of candidates, in accordance with regulation
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39(2) of the Chartered Accountants Regulations, 1988, the criteria
used for such discretion, the quantum of such revision, the quantum
of such revision, the authority that decides such discretion, and the
number of students along with the quantum of revision affected by
such revision in the last 5 exams, held at all levels (i.e.
PE1/PE2/PCC/CPE/Final with break up)."
(emphasis supplied)
4. The appellant by its reply dated 22.2.2008 gave the following
responses/information in response to the 13 queries :
"1. Professionals, academicians and officials with relevant academic and
practical experience and exposure in relevant and related fields.
2&3. Evaluation of answer books is carried out in terms of the
guidance including instructions provided by Head Examiners
appointed for each subject(s). Subsequently, a review thereof is
undertaken for the purpose of moderators.
4. In terms of (1) above, a list of examiners is maintained under
Regulation 42 of the Chartered Accountants Regulations, 1988. Based on
the performance of the examiners, moderators are appointed from amongst
the examiners.
5. Solutions are given in confidence of examiners for the purpose of
evaluation. Services of moderators are utilized in our context for
paper setting.
6. Rs.50/- per answer book is paid to the examiner while Rs.10,000/- is
paid to the moderator for each paper.
7. The number of students who appeared in the last two years is as follow:
Month & Number of students Appeared
Year
PE-I PE-II PCC CPE* FINAL
Nov.,2005 16228 47522 Not held Not held 28367
May,2006 32215 49505 Not held Not held 26254
Nov.,2006 16089 49220 Not held 27629 24704
May,2007 6194 56624 51 42910 23490
*CPE is read as Common Proficiency Test (CPT).
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8. Since such a data is not compiled, it is regretted that the number of
students who passed Final Examination at the 1st attempt cannot be made
available.
9. The number of students who applied for the verification of answer
books is as follows:-
Month & Number of students who applied for verification from
Year among the failed candidates*
PE-I PE-II PCC CPE FINAL
Nov.,2005 598 4150 Not held Not held 4432
May,2006 1607 4581 Not held Not held 4070
Nov.,2006 576 4894 Not held 205 3352
May,2007 204 5813 07 431 3310
* This figure may contain some pass candidates also.
10. Each request for verification is processed in accordance with
Regulation 39(4) of the Chartered Accountants Regulation, 1988
through well laid down scientific and meticulous procedure and a
comprehensive checking is done before arriving at any conclusion.
The process of verification starts after declaration of result and each
request is processed on first come first served basis. The verification of
the answer books, as requested, is done by two independent persons
separately and then, reviewed by an Officer of the Institute and upon
his satisfaction, the letter informing the outcome of the verification
exercise is issued after the comprehensive check has been
satisfactorily completed.
11. The number of students who were declared passed consequent to
the verification of answer books is as given below:-
Month & Number of students who applied for verification from
Year among the failed candidates*
PE-I PE-II PCC CPE FINAL
Nov.,2005 14 40 Not held Not held 37
May,2006 24 86 Not held Not held 30
Nov.,2006 07 61 Not held 02 35
May,2007 03 56 Nil Nil 27
* This figure may contain some pass candidates also.
12. Independent persons such as retired Govt. teachers/Officers are
assigned the task of verification of answer books work. A token
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honorarium of Rs.6/- per candidate besides lump sum daily conveyance
allowance is paid.
13. The Examination Committee in terms of Regulation 39(2) has the
authority to revise the marks based on the findings of the Head
Examiners and incidental information in the knowledge of the
Examination Committee, in its best wisdom. Since the details
sought are highly confidential in nature and there is no larger
public interest warrants disclosure, the same is denied under
Section 8(1)(e) of the Right to Information Act, 2005."
(emphasis supplied)
5. Not being satisfied with the same, the respondent filed an appeal
before the appellate authority. The appellate authority dismissed the appeal,
by order dated 10.4.2008, concurring with the order of the Chief Public
Information Officer of the appellant. The first respondent thereafter filed a
second appeal before the Central Information Commission (for short `CIC')
in regard to queries (1) to (5) and (7) to (13). CIC by order dated 23.12.2008
rejected the appeal in regard to queries 3, 5 and 13 (as also Query 2) while
directing the disclosure of information in regard to the other questions. We
extract below the reasoning given by the CIC to refuse disclosure in regard
to queries 3,5 and 13.
"Re: Query No.3.
Decision:
This request of the Appellant cannot be without seriously and perhaps
irretrievably compromising the entire examination process. An instruction
issued by a public authority - in this case, examination conducting
authority - to its examiners is strictly confidential. There is an implied
contract between the examiners and the examination conducting public
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authority. It would be inappropriate to disclose this information. This item
of information too, like the previous one, attracts section 8(1)(d) being the
intellectual property of the public authority having being developed
through careful empirical and intellectual study and analysis over the
years. I, therefore, hold that this item of query attracts exemption under
section 8(1)(e) as well as section 8(1)(d) of the RTI Act.
Re : Query No.5.
Decision:
Respondents have explained that what they provide to the examiners is
"solutions" and not "model answers" as assumed by the appellant. For the
aid of the students and examinees, "suggested answers" to the questions in
an exam are brought out and sold in the market.
It would be wholly inappropriate to provide to the students the solutions
given to the questions only for the exclusive use of the examiners and
moderators. Given the confidentiality of interaction between the public
authority holding the examinations and the examiners, the "solutions"
qualifies to be items barred by section 8(1)(e) of the RTI Act. This item of
information also attracts section 8(1)(d) being the exclusive intellectual
property of the public authority. Respondents have rightly advised the
appellant to secure the "suggested answers" to the questions from the open
market, where these are available for sale.
Re : Query No.13.
Decision:
I find no infirmity in the reply furnished to the appellant. It is a categorical
statement and must be accepted as such. Appellant seems to have certain
presumptions and assumptions about what these replies should be.
Respondents are not obliged to cater to that. It is therefore held that there
shall be no further disclosure of information as regards this item of
query."
6. Feeling aggrieved by the rejection of information sought under items
3, 5 and 13, the first respondent approached the Bombay High Court by
filing a writ petition. The High Court allowed the said petition by order
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dated 30.11.2010 and directed the appellant to supply the information in
regard to queries 3, 5 and 13, on the following reasoning :
"According to the Central Information Commission the solutions which
have been supplied by the Board to the examiners are given in confidence
and therefore, they are entitled to protection under Section 8(1)(e) of the
RTI Act. Section 8(1)(e) does not protect confidential information and the
claim of intellectual property has not made by the respondent No.2
anywhere. In the reply it is suggested that the suggested answers are
published and sold in open market by the Board. Therefore, there can be
no confidentiality about suggested answers. It is no where explained what
is the difference between the suggested answers and the solutions. In our
opinion, the orders of both Authorities in this respect also suffer from non-
application of mind and therefore they are liable to be set aside. We find
that the right given under the Right to Information Act has been dealt with
by the Authorities under that Act in most casual manner without properly
applying their minds to the material on record. In our opinion, therefore,
information sought against queries Nos.3,5 and 13 could not have been
denied by the Authorities to the petitioner. The principal defence of the
respondent No.2 is that the information is confidential. Till the result of
the examination is declared, the information sought by the petitioner has to
be treated as confidential, but once the result is declared, in our opinion,
that information cannot be treated as confidential. We were not shown
anything which would even indicate that it is necessary to keep the
information in relation to the examination which is over and the result is
also declared as confidential."
7. The said order of the High Court is challenged in this appeal by
special leave. The appellant submitted that it conducts the following
examinations: (i) the common proficiency test; (ii) professional education
examination-II (till May 2010); (iii) professional competence examination;
(iv) integrated professional competence examination; (v) final examination;
and (vi) post qualification course examinations. A person is enrolled as a
Chartered Accountant only after passing the common proficiency test,
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professional educational examination-II/professional competence
examination and final examination. The number of candidates who applied
for various examinations conducted by ICAI were 2.03 lakhs in 2006, 4.16
lakhs in 2007; 3.97 lakh candidates in 2008 and 4.20 lakhs candidates in
2009. ICAI conducts the examinations in about 343 centres spread over 147
cities throughout the country and abroad. The appellant claims to follow the
following elaborate system with established procedures in connection with
its examinations, taking utmost care with regard to valuation of answer
sheets and preparation of results and also in carrying out verification in case
a student applies for the same in accordance with the following Regulations:
"Chartered Accountants with a standing of minimum of 5-7 years in the
profession or teachers with a minimum experience of 5-7 years in
university education system are empanelled as examiners of the Institute.
The eligibility criteria to be empanelled as examiner for the examinations
held in November, 2010 was that a chartered accountant with a minimum
of 3 years' standing, if in practice, or with a minimum of 10 yeas standing,
if in service and University lecturers with a minimum of 5 years' teaching
experience at graduate/post graduate level in the relevant subjects with
examiner ship experience of 5 years. The said criteria is continued to be
followed. The bio-data of such persons who wish to be empanelled are
scrutinized by the Director of Studies of the Institute in the first instance.
Thereafter, Examination Committee considers each such application and
takes a decision thereon. The examiners, based on their performance and
experience with the system of the ICAI, are invited to take up other
assignments of preparation of question paper, suggested solution, marking
scheme, etc. and also appointed as Head Examiners to supervise the
evaluation carried out by the different examiners in a particular subject
from time to time.
A question paper and its solution are finalized by different experts in the
concerned subject at 3 stages. In addition, the solution is also vetted by
Director of Studies of the Institute after the examination is held and before
the evaluation of the answer sheets are carried out by examiners. All
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possible alternate solutions to a particular question as intimated by
different examiners in a subject are also included in the solution. Each
examiner in a particular subject is issued detailed instructions on marking
scheme by the Head Examiners and general guidelines for evaluation
issued by the ICAI. In addition, performance of each examiner, to
ascertain whether the said examiner has complied with the instructions
issued as also the general guidelines of the Institute, is assessed by the
Head Examiner at two stages before the declaration of result. The said
process has been evolved based on the experience gained in the last 60
years of conducting examinations and to ensure all possible uniformity in
evaluation of answer sheets carried out by numerous examiners in a
particular subject and to provide justice to the candidates.
The examination process/procedure/systems of the ICAI are well in place
and have been evolved over several decades out of experience gained. The
said process/procedure/systems have adequate checks to ensure fair results
and also ensure that due justice is done to each candidate and no candidate
ever suffers on any count."
8. The appellant contends that the information sought as per queries (3)
and (5) - that is, instructions and model answers, if any, issued to the
examiners and moderators by ICAI cannot be disclosed as they are exempted
from disclosure under clauses (d) and (e) of sub-section (1) of Section 8 of
RTI Act. It is submitted that the request for information is also liable to be
rejected under section 9 of the Act. They also contended that in regard to
query No.(13), whatever information available had been furnished, apart
from generally invoking section 8(1)(e) to claim exemption.
9. On the said contentions, the following questions arise for our
consideration:
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(i) Whether the instructions and solutions to questions (if any) given by
ICAI to examiners and moderators, are intellectual property of the ICAI,
disclosure of which would harm the competitive position of third parties and
therefore exempted under section 8(1)(d) of the RTI Act?
(ii) Whether providing access to the information sought (that is
instructions and solutions to questions issued by ICAI to examiners and
moderators) would involve an infringement of the copyright and therefore
the request for information is liable to be rejected under section 9 of the RTI
Act?
(iii) Whether the instructions and solutions to questions are information
made available to examiners and moderators in their fiduciary capacity and
therefore exempted under section 8(1)(e) of the RTI Act?
(iv) Whether the High Court was justified in directing the appellant to
furnish to the first respondent five items of information sought (in query
No.13) relating to Regulation 39(2) of Chartered Accountants Regulations,
1988?
Re: Question (i)
10. The term `intellectual property' refers to a category of intangible
rights protecting commercially valuable products of human intellect
comprising primarily trade mark, copyright and patent right, as also trade
secret rights, publicity rights, moral rights and rights against unfair
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competition (vide Black's Law Dictionary, 7th Edition, page 813). Question
papers, instructions regarding evaluation and solutions to questions (or
model answers) which are furnished to examiners and moderators in
connection with evaluation of answer scripts, are literary works which are
products of human intellect and therefore subject to a copyright. The paper
setters and authors thereof (other than employees of ICAI), who are the first
owners thereof are required to assign their copyright in regard to the
question papers/solutions in favour of ICAI. We extract below the relevant
standard communication sent by ICAI in that behalf:
"The Council is anxious to prevent the unauthorized circulation of
Question Papers set for the Chartered Accountants Examinations as well
as the solutions thereto. With that object in view, the Council proposes to
reserve all copy-rights in the question papers as well as solutions. In order
to enable the Council to retain the copy-rights, it has been suggested that it
would be advisable to obtain a specific assignment of any copy-rights or
rights of publication that you may be deemed to possess in the questions
set by you for the Chartered Accountants Examinations and the solutions
thereto in favour of the Council. I have no doubt that you will appreciate
that this is merely a formality to obviate any misconception likely to arise
later on."
In response to it, the paper setters/authors give declarations of assignment,
assigning their copyrights in the question papers and solutions prepared by
them, in favour of ICAI. Insofar as instructions prepared by the employees
of ICAI, the copyright vests in ICAI. Consequently, the question papers,
solutions to questions and instructions are the intellectual properties of ICAI.
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The appellant contended that if the question papers, instructions or solutions
to questions/model answers are disclosed before the examination is held, it
would harm the competitive position of all other candidates who participate
in the examination and therefore the exemption under section 8(1)(d) is
squarely attracted.
11. The first respondent does not dispute that the appellant is entitled to
claim a copyright in regard to the question papers, solutions/model answers,
instructions relating to evaluation and therefore the said material constitute
intellectual property of the appellant. But he contends that the exemption
under section 8(1)(d) will not be available if the information is merely an
intellectual property. The exemption under section 8(1)(d) is available only
in regard to such intellectual property, the disclosure of which would harm
the competitive position of any third party. It was submitted that the
appellant has not been able to demonstrate that the disclosure of the said
intellectual property (instructions and solutions/model answers) would harm
the competitive position of any third party.
12. Information can be sought under the RTI Act at different stages or
different points of time. What is exempted from disclosure at one point of
time may cease to be exempted at a later point of time, depending upon the
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nature of exemption. For example, any information which is exempted from
disclosure under section 8, is liable to be disclosed if the application is made
in regard to the occurrence or event which took place or occurred or
happened twenty years prior to the date of the request, vide section 8(3) of
the RTI Act. In other words, information which was exempted from
disclosure, if an application is made within twenty years of the occurrence,
may not be exempted if the application is made after twenty years. Similarly,
if information relating to the intellectual property, that is the question
papers, solutions/model answers and instructions, in regard to any particular
examination conducted by the appellant cannot be disclosed before the
examination is held, as it would harm the competitive position of
innumerable third parties who are taking the said examination. Therefore it
is obvious that the appellant examining body is not liable to give to any
citizen any information relating to question papers, solutions/model
answers and instructions relating to a particular examination before the date
of such examination. But the position will be different once the examination
is held. Disclosure of the question papers, model answers and instructions in
regard to any particular examination, would not harm the competitive
position of any third party once the examination is held. In fact the question
papers are disclosed to everyone at the time of examination. The appellant
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voluntarily publishes the "suggested answers" in regard to the question
papers in the form of a book for sale every year, after the examination.
Therefore section 8(1)(d) of the RTI Act does not bar or prohibit the
disclosure of question papers, model answers (solutions to questions) and
instructions if any given to the examiners and moderators after the
examination and after the evaluation of answerscripts is completed, as at that
stage they will not harm the competitive position of any third party. We
therefore reject the contention of the appellant that if an information is
exempt at any given point of time, it continues to be exempt for all time to
come.
Re : Question (ii)
13. Section 9 of the RTI Act provides that a Central or State Public
Information Officer may reject a request for information where providing
access to such information would involve an infringement of copyright
subsisting in a person other than the State. The word `State' used in section
9 of RTI Act refers to the Central or State Government, Parliament or
Legislature of a State, or any local or other authorities as described under
Article 12 of the Constitution. The reason for using the word `State' and not
`public authority' in section 9 of RTI Act is apparently because the
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definition of `public authority' in the Act is wider than the definition of
`State' in Article 12, and includes even non-government organizations
financed directly or indirectly by funds provided by the appropriate
government. Be that as it may. An application for information would be
rejected under section 9 of RTI Act, only if information sought involves an
infringement of copyright subsisting in a person other than the State. ICAI
being a statutory body created by the Chartered Accountants Act, 1948 is
`State'. The information sought is a material in which ICAI claims a
copyright. It is not the case of ICAI that anyone else has a copyright in such
material. In fact it has specifically pleaded that even if the question papers,
solutions/model answers, or other instructions are prepared by any third
party for ICAI, the copyright therein is assigned in favour of ICAI.
Providing access to information in respect of which ICAI holds a copyright,
does not involve infringement of a copyright subsisting in a person other
than the State. Therefore ICAI is not entitled to claim protection against
disclosure under section 9 of the RTI Act.
14. There is yet another reason why section 9 of RTI Act will be
inapplicable. The words `infringement of copyright' have a specific
connotation. Section 51 of the Copyright Act, 1957 provides when a
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copyright in a work shall be deemed to be infringed. Section 52 of the Act
enumerates the acts which are not infringement of a copyright. A combined
reading of sections 51 and 52(1)(a) of Copyright Act shows that furnishing
of information by an examining body, in response to a query under the RTI
Act may not be termed as an infringement of copyright. Be that as it may.
Re : Question (iii)
15. We will now consider the third contention of ICAI that the
information sought being an information available to a person in his
fiduciary relationship, is exempted under section 8(1)(e) of the RTI Act.
This Court in Central Board of Secondary Education & Anr. v. Aditya
Bandopadhyay & Ors. [2011 (8) SCALE 645] considered the meaning of the
words information available to a person in his fiduciary capacity and
observed thus:
"But the words `information available to a person in his fiduciary
relationship' are used in section 8(1)(e) of RTI Act in its normal and well
recognized sense, that is to refer to persons who act in a fiduciary
capacity, with reference to a specific beneficiary or beneficiaries who are
to be expected to be protected or benefited by the actions of the fiduciary -
a trustee with reference to the beneficiary of the trust, a guardian with
reference to a minor/physically/infirm/mentally challenged, a parent with
reference to a child, a lawyer or a chartered accountant with reference to a
client, a doctor or nurse with reference to a patient, an agent with
reference to a principal, a partner with reference to another partner, a
director of a company with reference to a share-holder, an executor with
reference to a legatee, a receiver with reference to the parties to a lis, an
employer with reference to the confidential information relating to the
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employee, and an employee with reference to business
dealings/transaction of the employer."
16. The instructions and `solutions to questions' issued to the examiners
and moderators in connection with evaluation of answer scripts, as noticed
above, is the intellectual property of ICAI. These are made available by
ICAI to the examiners and moderators to enable them to evaluate the answer
scripts correctly and effectively, in a proper manner, to achieve uniformity
and consistency in evaluation, as a large number of evaluators and
moderators are engaged by ICAI in connection with the evaluation. The
instructions and solutions to questions are given by the ICAI to the
examiners and moderators to be held in confidence. The examiners and
moderators are required to maintain absolute secrecy and cannot disclose the
answer scripts, the evaluation of answer scripts, the instructions of ICAI and
the solutions to questions made available by ICAI, to anyone. The examiners
and moderators are in the position of agents and ICAI is in the position of
principal in regard to such information which ICAI gives to the examiners
and moderators to achieve uniformity, consistency and exactness of
evaluation of the answer scripts. When anything is given and taken in trust
or in confidence, requiring or expecting secrecy and confidentiality to be
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maintained in that behalf, it is held by the recipient in a fiduciary
relationship.
17. It should be noted that section 8(1)(e) uses the words "information
available to a person in his fiduciary relationship. Significantly section
8(1)(e) does not use the words "information available to a public authority
in its fiduciary relationship". The use of the words "person" shows that the
holder of the information in a fiduciary relationship need not only be a
`public authority' as the word `person' is of much wider import than the
word `public authority'. Therefore the exemption under section 8(1)(e) is
available not only in regard to information that is held by a public authority
(in this case the examining body) in a fiduciary capacity, but also to any
information that is given or made available by a public authority to anyone
else for being held in a fiduciary relationship. In other words, anything given
and taken in confidence expecting confidentiality to be maintained will be
information available to a person in fiduciary relationship. As a
consequence, it has to be held that the instructions and solutions to questions
communicated by the examining body to the examiners, head-examiners and
moderators, are information available to such persons in their fiduciary
relationship and therefore exempted from disclosure under section 8(1)(d) of
RTI Act.
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18. The information to which RTI Act applies falls into two categories,
namely, (i) information which promotes transparency and accountability in
the working of every public authority, disclosure of which helps in
containing or discouraging corruption, enumerated in clauses (b) and (c) of
section 4(1) of RTI Act; and (ii) other information held by public authorities
not falling under section 4(1)(b) and (c) of RTI Act. In regard to information
falling under the first category, the public authorities owe a duty to
disseminate the information widely suo moto to the public so as to make it
easily accessible to the public. In regard to information enumerated or
required to be enumerated under section 4(1)(b) and (c) of RTI Act,
necessarily and naturally, the competent authorities under the RTI Act, will
have to act in a pro-active manner so as to ensure accountability and ensure
that the fight against corruption goes on relentlessly. But in regard to other
information which do not fall under Section 4(1)(b) and (c) of the Act, there
is a need to proceed with circumspection as it is necessary to find out
whether they are exempted from disclosure. One of the objects of democracy
is to bring about transparency of information to contain corruption and bring
about accountability. But achieving this object does not mean that other
equally important public interests including efficient functioning of the
governments and public authorities, optimum use of limited fiscal resources,
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preservation of confidentiality of sensitive information, etc. are to be ignored
or sacrificed. The object of RTI Act is to harmonize the conflicting public
interests, that is, ensuring transparency to bring in accountability and
containing corruption on the one hand, and at the same time ensure that the
revelation of information, in actual practice, does not harm or adversely
affect other public interests which include efficient functioning of the
governments, optimum use of limited fiscal resources and preservation of
confidentiality of sensitive information, on the other hand. While sections 3
and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to
achieve the second objective. Therefore when section 8 exempts certain
information from being disclosed, it should not be considered to be a fetter
on the right to information, but as an equally important provision protecting
other public interests essential for the fulfilment and preservation of
democratic ideals. Therefore in dealing with information not falling under
section 4(1)(b) and (c), the competent authorities under the RTI Act will not
read the exemptions in section 8 in a restrictive manner but in a practical
manner so that the other public interests are preserved and the RTI Act
attains a fine balance between its goal of attaining transparency of
information and safeguarding the other public interests.
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19. Among the ten categories of information which are exempted from
disclosure under section 8 of RTI Act, six categories which are described in
clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information
enumerated in clauses (d), (e) and (j) on the other hand get only conditional
exemption, that is the exemption is subject to the overriding power of the
competent authority under the RTI Act in larger public interest, to direct
disclosure of such information. The information referred to in clause (i)
relates to an exemption for a specific period, with an obligation to make the
said information public after such period. The information relating to
intellectual property and the information available to persons in their
fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not
enjoy absolute exemption. Though exempted, if the competent authority
under the Act is satisfied that larger public interest warrants disclosure of
such information, such information will have to be disclosed. It is needless
to say that the competent authority will have to record reasons for holding
that an exempted information should be disclosed in larger public interest.
20. In this case the Chief Information Commissioner rightly held that the
information sought under queries (3) and (5) were exempted under section
8(1)(e) and that there was no larger public interest requiring denial of the
statutory exemption regarding such information. The High Court fell into an
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error in holding that the information sought under queries (3) and (5) was
not exempted.
Re : Question (iv)
21. Query (13) of the first respondent required the appellant to disclose
the following information: (i) The number of times ICAI had revised the
marks of any candidate or any class of candidates under Regulation 39(2);
(ii) the criteria used for exercising such discretion for revising the marks;
(iii) the quantum of such revisions; (iv) the authority who decides the
exercise of discretion to make such revision; and (v) the number of students
(with particulars of quantum of revision) affected by such revision held in
the last five examinations at all levels.
22. Regulation 39(2) of the Chartered Accountants Regulations, 1988
provides that the council may in its discretion, revise the marks obtained by
all candidates or a section of candidates in a particular paper or papers or in
the aggregate, in such manner as may be necessary for maintaining its
standards of pass percentage provided in the Regulations. Regulation 39(2)
thus provides for what is known as `moderation', which is a necessary
concomitant of evaluation process of answer scripts where a large number of
examiners are engaged to evaluate a large number of answer scripts. This
23
Court explained the standard process of moderation in Sanjay Singh v. U.P.
Public Service Commission - 2007 (3) SCC 720 thus:
"When a large number of candidates appear for an examination, it is
necessary to have uniformity and consistency in valuation of the answer-
scripts. Where the number of candidates taking the examination are
limited and only one examiner (preferably the paper-setter himself)
evaluates the answer-scripts, it is to be assumed that there will be
uniformity in the valuation. But where a large number of candidates take
the examination, it will not be possible to get all the answer-scripts
evaluated by the same examiner. It, therefore, becomes necessary to
distribute the answer-scripts among several examiners for valuation with
the paper-setter (or other senior person) acting as the Head Examiner.
When more than one examiner evaluate the answer-scripts relating to a
subject, the subjectivity of the respective examiner will creep into the
marks awarded by him to the answer- scripts allotted to him for valuation.
Each examiner will apply his own yardstick to assess the answer-scripts.
Inevitably therefore, even when experienced examiners receive equal
batches of answer scripts, there is difference in average marks and the
range of marks awarded, thereby affecting the merit of individual
candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are
liberal in valuation and tend to award more marks. Some examiners are
strict and tend to give less marks. Some may be moderate and balanced in
awarding marks. Even among those who are liberal or those who are strict,
there may be variance in the degree of strictness or liberality. This means
that if the same answer-script is given to different examiners, there is all
likelihood of different marks being assigned. If a very well written
answer-script goes to a strict examiner and a mediocre answer-script goes
to a liberal examiner, the mediocre answer-script may be awarded more
marks than the excellent answer-script. In other words, there is 'reduced
valuation' by a strict examiner and 'enhanced valuation' by a liberal
examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'.
Therefore, there is a need to evolve a procedure to ensure uniformity inter
se the Examiners so that the effect of 'examiner subjectivity' or 'examiner
variability' is minimised. The procedure adopted to reduce examiner
subjectivity or variability is known as moderation. The classic method of
moderation is as follows:
xxx xxx xxx
(ii) To achieve uniformity in valuation, where more than one examiner is
involved, a meeting of the Head Examiner with all the examiners is held
soon after the examination. They discuss thoroughly the question paper,
the possible answers and the weightage to be given to various aspects of
24
the answers. They also carry out a sample valuation in the light of their
discussions. The sample valuation of scripts by each of them is reviewed
by the Head Examiner and variations in assigning marks are further
discussed. After such discussions, a consensus is arrived at in regard to the
norms of valuation to be adopted. On that basis, the examiners are
required to complete the valuation of answer scripts. But this by itself,
does not bring about uniformity of assessment inter se the examiners. In
spite of the norms agreed, many examiners tend to deviate from the
expected or agreed norms, as their caution is overtaken by their propensity
for strictness or liberality or eroticism or carelessness during the course of
valuation. Therefore, certain further corrective steps become necessary.
(iii) After the valuation is completed by the examiners, the Head Examiner
conducts a random sample survey of the corrected answer scripts to verify
whether the norms evolved in the meetings of examiner have actually been
followed by the examiners...........
(iv) After ascertaining or assessing the standards adopted by each
examiner, the Head Examiner may confirm the award of marks without
any change if the examiner has followed the agreed norms, or suggest
upward or downward moderation, the quantum of moderation varying
according to the degree of liberality or strictness in marking. In regard to
the top level answer books revalued by the Head Examiner, his award of
marks is accepted as final. As regards the other answer books below the
top level, to achieve maximum measure of uniformity inter se the
examiners, the awards are moderated as per the recommendations made by
the Head Examiner.
(v) If in the opinion of the Head Examiner there has been erratic or
careless marking by any examiner, for which it is not feasible to have any
standard moderation, the answer scripts valued by such examiner are
revalued either by the Head Examiner or any other Examiner who is found
to have followed the agreed norms.
(vi) Where the number of candidates is very large and the examiners are
numerous, it may be difficult for one Head Examiner to assess the work of
all the Examiners. In such a situation, one more level of Examiners is
introduced. For every ten or twenty examiners, there will be a Head
Examiner who checks the random samples as above. The work of the
Head Examiners, in turn, is checked by a Chief Examiner to ensure proper
results.
The above procedure of 'moderation' would bring in considerable
uniformity and consistency. It should be noted that absolute uniformity or
consistency in valuation is impossible to achieve where there are several
examiners and the effort is only to achieve maximum uniformity."
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Each examining body will have its own standards of `moderation', drawn up
with reference to its own experiences and the nature and scope of the
examinations conducted by it. ICAI shall have to disclose the said standards
of moderation followed by it, if it has drawn up the same, in response to part
(ii) of first respondent's query (13).
23. In its communication dated 22.2.2008, ICAI informed the first
respondent that under Regulation 39(2), its Examining Committee had the
authority to revise the marks based on the findings of the Head Examiners
and any incidental information in its knowledge. This answers part (iv) of
query (13) as to the authority which decides the exercise of the discretion to
make the revision under Regulation 39(2).
24. In regard to parts (i), (iii) and (v) of query (13), ICAI submits that
such data is not maintained. Reliance is placed upon the following
observations of this Court in Aditya Bandopadhyay:
"The RTI Act provides access to all information that is available and
existing. This is clear from a combined reading of section 3 and the
definitions of `information' and `right to information' under clauses (f)
and (j) of section 2 of the Act. If a public authority has any information in
the form of data or analysed data, or abstracts, or statistics, an applicant
may access such information, subject to the exemptions in section 8 of the
Act. But where the information sought is not a part of the record of a
public authority, and where such information is not required to be
maintained under any law or the rules or regulations of the public
authority, the Act does not cast an obligation upon the public authority, to
26
collect or collate such non-available information and then furnish it to an
applicant."
As the information sought under parts (i), (iii) and (v) of query (13) are not
maintained and is not available in the form of data with the appellant in its
records, ICAI is not bound to furnish the same.
General submissions of ICAI
25. The learned counsel of ICAI submitted that there are several hundred
examining bodies in the country. With the aspirations of young citizens to
secure seats in institutions of higher learning or to qualify for certain
professions or to secure jobs, more and more persons participate in more and
more examinations. It is quite common for an examining body to conduct
examinations for lakhs of candidates that too more than once per year.
Conducting examinations involving preparing the question papers,
conducting the examinations at various centres all over the country, getting
the answer scripts evaluated and declaring results, is an immense task for
examining bodies, to be completed within fixed time schedules. If the
examining bodies are required to frequently furnish various kinds of
information as sought in this case to several applicants, it will add an
enormous work load and their existing staff will not be able to cope up with
27
the additional work involved in furnishing information under the RTI Act. It
was submitted by ICAI that it conducts several examinations every year
where more than four lakhs candidates participate; that out of them, about
15-16% are successful, which means that more than three and half lakhs of
candidates are unsuccessful; that if even one percent at those unsuccessful
candidates feel dissatisfied with the results and seek all types of unrelated
information, the working of ICAI will come to a standstill. It was submitted
that for every meaningful user of RTI Act, there are several abusers who will
attempt to disrupt the functioning of the examining bodies by seeking huge
quantity of information. ICAI submits that the application by the first
respondent is a classic case of improper use of the Act, where a candidate
who has failed in an examination and who does not even choose to take the
subsequent examination has been engaging ICAI in a prolonged litigation by
seeking a bundle of information none of which is relevant to decide whether
his answer script was properly evaluated, nor have any bearing on
accountability or reducing corruption. ICAI submits that there should be an
effective control and screening of applications for information by the
competent authorities under the Act. We do not agree that first respondent
had indulged in improper use of RTI Act. His application is intended to
bring about transparency and accountability in the functioning of ICAI. How
28
far he is entitled to the information is a different issue. Examining bodies
like ICAI should change their old mindsets and tune them to the new regime
of disclosure of maximum information. Public authorities should realize that
in an era of transparency, previous practices of unwarranted secrecy have no
longer a place. Accountability and prevention of corruption is possible only
through transparency. Attaining transparency no doubt would involve
additional work with reference to maintaining records and furnishing
information. Parliament has enacted the RTI Act providing access to
information, after great debate and deliberations by the Civil Society and the
Parliament. In its wisdom, the Parliament has chosen to exempt only certain
categories of information from disclosure and certain organizations from the
applicability of the Act. As the examining bodies have not been exempted,
and as the examination processes of examining bodies have not been
exempted, the examining bodies will have to gear themselves to comply
with the provisions of the RTI Act. Additional workload is not a defence. If
there are practical insurmountable difficulties, it is open to the examining
bodies to bring them to the notice of the government for consideration so
that any changes to the Act can be deliberated upon. Be that as it may.
26. We however agree that it is necessary to make a distinction in regard
to information intended to bring transparency, to improve accountability and
29
to reduce corruption, falling under section 4(1)(b) and (c) and other
information which may not have a bearing on accountability or reducing
corruption. The competent authorities under the RTI Act will have to
maintain a proper balance so that while achieving transparency, the demand
for information does not reach unmanageable proportions affecting other
public interests, which include efficient operation of public authorities and
government, preservation of confidentiality of sensitive information and
optimum use of limited fiscal resources.
27. In view of the above, this appeal is allowed in part and the order of the
High Court is set aside and the order of the CIC is restored, subject to one
modification in regard to query (13): ICAI to disclose to the first respondent,
the standard criteria, if any, relating to moderation, employed by it, for the
purpose of making revisions under Regulation 39(2).
............................J.
(R V Raveendran)
New Delhi; ............................J.
September 2, 2011. (A K Patnaik)
