The first respondent appeared for the Secondary School Examination, 2008 conducted by the Central Board of Secondary Education (for short

                                                                            Reportable

                     IN THE SUPREME COURT OF INDIA


                      CIVIL APPELALTE JURISDICTION


                       CIVIL APPEAL NO.6454  OF 2011

                      [Arising out of SLP [C] No.7526/2009]




Central Board of Secondary Education & Anr.                       ... Appellants


Vs.


Aditya Bandopadhyay & Ors.                                        ... Respondents


                                         With


CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)

CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)

CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)

CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)

CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)

CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)

CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)


                                 J U D G M E N T




R.V.RAVEENDRAN, J.




          Leave granted. For convenience, we will refer to the facts of the first


case.




2.        The first respondent appeared for the Secondary School Examination,


2008   conducted   by   the   Central   Board   of   Secondary   Education   (for   short


                                               2



`CBSE' or the `appellant'). When he got the mark sheet he was disappointed


with his marks. He thought that he had done well in the examination but his


answer-books   were   not   properly   valued   and   that   improper   valuation   had


resulted in low marks. Therefore he made an application for inspection and


re-evaluation of his answer-books. CBSE rejected the said request by letter


dated 12.7.2008. The reasons for rejection were:





(i)      The  information  sought was exempted under Section  8(1)(e)  of RTI

         Act since CBSE shared fiduciary relationship with its evaluators and

         maintain confidentiality of both manner and method of evaluation.


(ii)     The  Examination  Bye-laws   of  the Board  provided  that  no candidate

         shall claim or is entitled to re-evaluation of his answers or disclosure

         or inspection of answer book(s) or other documents.


(iii)    The   larger   public   interest   does   not   warrant   the   disclosure   of   such

         information sought.


(iv)     The Central Information Commission, by its order dated 23.4.2007 in

         appeal   no.   ICPB/A-3/CIC/2006   dated   10.2.2006   had   ruled   out   such

         disclosure."




3.       Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008


before the Calcutta High Court and sought the following reliefs : (a) for a


declaration   that   the   action   of   CBSE   in   excluding   the   provision   of   re-


evaluation   of   answer-sheets,   in   regard   to   the   examinations   held   by   it   was


illegal,   unreasonable   and  violative  of the  provisions   of  the Constitution  of


                                                     3



India; (b) for a direction to CBSE to appoint an independent examiner for re-


evaluating his answer-books and issue a fresh marks card on the basis of re-


evaluation;     (c)   for   a   direction   to   CBSE   to   produce   his   answer-books   in


regard   to   the   2008   Secondary   School   Examination   so   that   they   could   be


properly   reviewed   and   fresh   marks   card   can   be   issued   with   re-evaluation


marks;   (d) for quashing the communication of CBSE dated 12.7.2008 and


for a direction to produce the answer-books into court for inspection by the


first respondent. The respondent contended that section 8(1)(e) of Right to


Information Act, 2005 (`RTI Act' for short) relied upon by CBSE was not


applicable and relied upon the provisions of the RTI Act to claim inspection.





4.     CBSE resisted the petition. It contended that as per its Bye-laws, re-


evaluation   and   inspection   of   answer-books   were   impermissible   and   what


was permissible was only verification of marks. They relied upon the CBSE


Examination   Bye-law   No.61,   relevant   portions   of   which   are   extracted


below:


       "61. Verification of marks obtained by a Candidate in a subject


       (i)   A   candidate   who   has   appeared   at   an   examination   conducted   by   the

       Board   may   apply   to   the   concerned   Regional   Officer   of   the   Board   for

       verification   of   marks   in   any   particular   subject.   The   verification   will   be

       restricted   to   checking   whether   all   the   answer's   have   been   evaluated   and

       that there has been no mistake in the totalling of marks for each question

       in that subject and that the marks have been transferred correctly on the

       title   page   of   the   answer   book   and   to   the   award   list   and   whether   the


                                                      4



        supplementary answer book(s) attached with the answer book mentioned

        by   the   candidate   are   intact.   No   revaluation   of   the   answer   book   or

        supplementary answer book(s) shall be done.


        (ii)   Such   an   application   must   be   made   by   the   candidate   within   21   days

        from the date of the declaration of result   for Main Examination  and 15

        days for Compartment Examination.


        (iii)   All   such   applications   must   be   accompanied   by   payment   of   fee   as

        prescribed by the Board from time to time.


        (iv) No candidate shall claim, or be entitled to, revaluation of his/her

        answers   or   disclosure   or   inspection   of   the   answer   book(s)   or   other

        documents.


        xxxx


        (vi) In no case the verification of marks shall be done in the presence of

        the candidate or anyone else on his/her behalf, nor will the answer books

        be shown to him/her or his/her representative.


        (vii)   Verification   of  marks   obtained   by  a   candidate   will   be   done   by  the

        officials appointed by or with the approval of the Chairman.


        (viii) The marks, on verification will be revised upward or downward, as

        per the actual marks obtained by the candidate in his/her answer book.


        xxxx


        62. Maintenance of Answer Books


        The answer  books  shall be maintained  for a period of three months and

        shall thereafter be disposed of in the manner as decided by the Chairman

        from time to time."

                                                                            (emphasis supplied)





CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated


schools   across   the   country   appear   in   class   X   and   class   XII   examinations


conducted   by   it   and   this   generates   as   many   as   60   to   65   lakhs   of   answer-


books;   that   as   per   Examination   Bye-law   No.62,   it   maintains   the   answer


                                                        5



books only for a period of three months after which they are disposed of. It


was submitted that if candidates were to be permitted to seek re-evaluation


of   answer   books   or   inspection   thereof,   it   will   create   confusion   and   chaos,


subjecting its elaborate system of examinations to delay and disarray. It was


stated   that   apart   from   class   X   and   class   XII   examinations,   CBSE   also


conducts   several   other   examinations   (including   the   All   India   Pre-Medical


Test,   All   India   Engineering   Entrance   Examination   and   Jawahar   Navodaya


Vidyalaya's   Selection   Test).   If   CBSE   was   required   to   re-evaluate   the


answer-books or grant inspection of answer-books or grant certified copies


thereof,   it   would   interfere   with   its   effective   and   efficient   functioning,   and


will also require huge additional staff and infrastructure.   It was submitted


that   the   entire   examination   system   and   evaluation   by   CBSE   is   done   in   a


scientific   and   systemic   manner   designed   to   ensure   and   safeguard   the   high


academic standards and at each level utmost care was taken to achieve the


object   of   excellence,   keeping   in   view   the   interests   of   the   students.   CBSE


referred to the following elaborate procedure for evaluation adopted by it :


        "The examination papers are set by the teachers with at least 20 years of

        teaching   experience   and   proven   integrity.   Paper   setters   are   normally

        appointed from amongst academicians recommended by then Committee

        of courses of the Board.   Every paper setter is asked to set more than one

        set of question papers which are moderated by a team of moderators who

        are  appointed  from the  academicians  of the  University or from  amongst

        the   Senior   Principals.   The   function   of   the   moderation   team   is   to   ensure

        correctness and consistency of different  sets of question  papers with the

        curriculum   and   to   assess   the   difficulty   level   to   cater   to   the   students   of


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different  schools in different  categories.  After assessing the  papers from

every point of view, the team of moderators gives a declaration whether

the   whole   syllabus   is   covered   by   a   set   of   question   papers,   whether   the

distribution of difficulty level of all the sets is parallel and various other

aspects   to   ensure   uniform   standard.   The   Board   also   issues   detailed

instructions for the guidance of the moderators in order to ensure uniform

criteria for assessment.


The evaluation system on the whole is well organized and fool-proof. All

the   candidates   are   examined   through   question   papers   set   by   the   same

paper setters. Their answer books are marked with fictitious roll numbers

so   as   to   conceal   their   identity.   The   work   of   allotment   of   fictitious   roll

number is carried out by a team working under a Chief Secrecy Officer

having   full   autonomy.   The   Chief   Secrecy   Officer   and   his   team   of

assistants   are   academicians   drawn   from   the   Universities   and   other

autonomous educational bodies not connected with the Board. The Chief

Secrecy   Officer   himself   is   usually   a   person   of   the   rank   of   a   University

professor.   No   official   of   the   Board   at   the   Central   or   Regional   level   is

associated with him in performance of the task assigned to him. The codes

of fictitious roll numbers and their sequences are generated by the Chief

Secrecy   Officer   himself   on   the   basis   of   mathematical   formula   which

randomize the real roll numbers and are known only to him and his team.

This ensures complete secrecy about the identification of the answer book

so much so, that even the Chairman, of the Board and the Controller of

Examination   of   the   Board   do   not   have   any   information   regarding   the

fictitious roll numbers granted by the Chief Secrecy Officer and their real

counterpart numbers.


At   the   evaluation   stage,   the   Board   ensures   complete   fairness   and

uniformity by providing a marking scheme which is uniformity applicable

to   all   the   examiners   in   order   to   eliminate   the   chances   of   subjectivity.

These   marking   schemes   are   jointly   prepared   at   the   Headquarters   of   the

Board in Delhi by the Subject Experts of all the regions. The main purpose

of the marking scheme is to maintain uniformity in the evaluation of the

answer books.


The   evaluation   of   the   answer   books   in   all   major   subjects   including

mathematics,   science   subjects   is   done   in   centralized   "on   the   spot"

evaluation   centers   where   the   examiners   get   answer   book   in   interrupted

serial orders. Also, the answer books are jumbled  together as a result of

which the examiners, say in Bangalore may be marking the answer book

of  a  candidate  who  had  his examination   in  Pondicherry,   Goa,  Andaman

and  Nicobar  islands,  Kerala,  Andhra  Pradesh,   Tamil   Nadu  or  Karnataka

itself   but   he   has   no   way   of   knowing   exactly   which   answer   book   he   is

examining.   The   answer   books   having   been   marked   with   fictitious   roll

numbers   give   no   clue   to   any   examiner   about   the   state   or   territory   it


                                                       7



       belongs to. It cannot give any clue about the candidate's school or centre

       of   examination.   The   examiner   cannot   have   any   inclination   to   do   any

       favour to a candidate because he is unable to decodify his roll number or

       to know as to which school, place or state or territory he belongs to.


       The examiners check all the questions in the papers thoroughly under the

       supervision   of   head   examiner   and   award   marks   to   the   sub   parts

       individually not collectively. They take full precautions and due attention

       is given while assessing an answer book to do justice to the candidate. Re-

       evaluation is administratively impossible to be allowed in a Board where

       lakhs of students take examination in multiple subjects.


       There are strict instructions to the additional head examiners not to allow

       any shoddy work in evaluation and not to issue more than 20-25 answer

       books for evaluation to an examiner on a single day.  The examiners are

       practicing teachers who guard the interest of the candidates.  There is no

       ground   to   believe   that   they   do   unjust   marking   and   deny   the   candidates

       their due. It is true that in some cases totaling errors have been detected at

       the stage of scrutiny or verification of marks. In order to minimize such

       errors   and   to   further   strengthen   and   to   improve   its   system,   from   1993

       checking   of   totals   and   other   aspects   of   the   answers   has   been   trebled   in

       order to detect and eliminate all lurking errors.


       The results of all the candidates are reviewed by the Results Committee

       functioning   at   the   Head   Quarters.   The   Regional   Officers   are   not   the

       number of this Committee. This Committee reviews the results of all the

       regions   and   in   case   it   decides   to   standardize   the   results   in   view   of   the

       results shown by the regions over the previous years, it adopts a uniform

       policy for the candidates of all the regions. No special policy is adopted

       for   any   region,   unless   there   are   some   special   reasons.   This   practice   of

       awarding standardized marks in order to moderate the overall results is a

       practice   common   to   most   of   the   Boards   of   Secondary   Education.   The

       exact   number   of   marks   awarded   for   the   purpose   of   standardization   in

       different   subjects   varies   from   year   to   year.   The   system   is   extremely

       impersonalized and has no room for collusion infringement. It is in a word

       a scientific system."




CBSE   submitted   that   the   procedure   evolved   and   adopted   by   it   ensures


fairness   and   accuracy   in   evaluation   of   answer-books   and   made   the   entire


process   as   foolproof   as   possible   and   therefore   denial   of   re-evaluation   or


                                                 8



inspection or grant of copies cannot be considered to be denial of fair play or


unreasonable restriction on the rights of the students.





5.      A Division Bench of the High Court heard and disposed of the said


writ petition along with the connected writ petitions (relied by West Bengal


Board   of   Secondary   Education   and   others)   by   a   common   judgment   dated


5.2.2009.   The   High   Court   held   that   the   evaluated   answer-books   of   an


examinee  writing   a   public  examination   conducted   by   statutory   bodies   like


CBSE   or   any   University   or   Board   of   Secondary   Education,   being   a


`document,   manuscript   record,   and   opinion'   fell   within   the   definition   of


"information"   as   defined   in   section   2(f)   of   the   RTI   Act.   It   held   that   the


provisions of the RTI Act should be interpreted  in a manner which would


lead towards dissemination of information rather than withholding the same;


and in view of the right to information, the examining bodies were bound to


provide   inspection   of   evaluated   answer   books   to   the   examinees.


Consequently it directed CBSE to grant inspection of the answer books to


the   examinees   who   sought   information.   The   High   Court   however   rejected


the prayer made by the examinees for re-evaluation of the answer-books, as


that   was   not   a   relief   that   was   available   under   RTI   Act.     RTI   Act   only


provided a right to access information, but not for any consequential reliefs.


                                                 9



Feeling aggrieved by the direction to grant inspection, CBSE has filed this


appeal by special leave.




6.      Before   us   the   CBSE   contended   that   the   High   Court   erred   in   (i)


directing CBSE to permit inspection of the evaluated answer books, as that


would amount to requiring CBSE to disobey its Examination Bye-law 61(4),


which provided that no candidate shall claim or be entitled to re-evaluation


of answer books or disclosure/inspection of answer books; (ii) holding that


Bye-law   61(4)   was   not   binding   upon   the   examinees,   in   view   of     the


overriding effect of the provisions of the RTI Act, even though the validity


of that bye-law had not been challenged; (iii) not following the decisions of


this court in Maharashtra State Board of Secondary Education vs. Paritosh


B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar


PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan


P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC


603]  and  Secretary,   West   Bengal   Council   of  Higher   Secondary   Education


vs.   I   Dass  [2007   (8)   SCC   242];   and   (iv)   holding   that   the   examinee   had   a


right   to   inspect   his   answer   book   under   section   3   of   the   RTI   Act   and   the


examining   bodies   like   CBSE   were   not   exempted   from   disclosure   of


information under section 8(1)(e) of the RTI Act. The appellants contended


that they were holding the "information" (in this case, the evaluated answer


                                               10



books)   in   a   fiduciary   relationship   and   therefore   exempted   under   section


8(1)(e) of the RTI Act.





7.      The   examinees   and   the   Central   Information   Commission   contended


that   the   object   of   the   RTI   Act   is   to   ensure   maximum   disclosure   of


information   and   minimum   exemptions   from   disclosure;   that   an   examining


body does not hold the evaluated answer books, in any fiduciary relationship


either with the student or the examiner; and that the information sought by


any examinee by way of inspection of his answer books, will not fall under


any of the exempted categories of information enumerated in section 8 of the


RTI Act. It was submitted that an examining body being a public authority


holding   the   `information',   that   is,   the   evaluated   answer-books,   and   the


inspection of answer-books sought by the examinee being exercise of `right


to information' as defined under the Act, the examinee as a citizen has the


right   to   inspect   the   answer-books   and   take   certified   copies   thereof.   It   was


also   submitted   that   having   regard   to   section   22   of   the   RTI   Act,   the


provisions   of   the   said   Act   will   have   effect   notwithstanding   anything


inconsistent in any law and will prevail over any rule, regulation or bye law


of the examining body barring or prohibiting inspection of answer books.


                                                 11



8.       On   the   contentions   urged,   the   following   questions   arise   for   our


consideration :




(i)      Whether   an   examinee's   right   to   information   under   the   RTI   Act


         includes   a   right   to   inspect   his   evaluated   answer   books   in   a   public


         examination or taking certified copies thereof?



(ii)     Whether   the   decisions   of   this   court   in  Maharashtra   State   Board   of


         Secondary Education  [1984 (4) SCC 27] and other cases referred to


         above,   in   any   way   affect   or   interfere   with   the   right   of  an   examinee


         seeking   inspection   of   his   answer   books   or   seeking   certified   copies


         thereof?



(iii)    Whether an examining body holds the evaluated answer books "in a


         fiduciary   relationship"   and   consequently   has   no   obligation   to   give


         inspection   of   the   evaluated   answer   books   under   section   8   (1)(e)   of


         RTI Act?



(iv)     If the examinee is entitled to inspection of the evaluated answer books


         or seek certified copies thereof, whether such right is subject to any


         limitations, conditions or safeguards?            





Relevant Legal Provisions




9.       To consider these questions, it is necessary to refer to the statement of


objects   and   reasons,   the   preamble   and   the   relevant   provisions   of   the   RTI


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Act.   RTI   Act   was   enacted   in   order   to   ensure   smoother,   greater   and   more


effective   access   to   information   and   provide   an   effective   framework   for


effectuating   the   right   of   information   recognized   under   article   19   of   the


Constitution.   The   preamble   to   the   Act   declares   the   object   sought   to   be


achieved by the RTI Act thus:




       "An   Act   to   provide   for   setting   out   the   practical   regime   of   right   to

       information for citizens to secure access to information under the control

       of public authorities, in order to promote transparency and accountability

       in   the   working   of   every   public   authority,   the   constitution   of   a   Central

       Information   Commission   and   State   Information   Commissions   and   for

       matters connected therewith or incidental thereto.


       Whereas the Constitution of India has established democratic Republic;


       And whereas democracy requires an informed citizenry and transparency

       of   information   which   are   vital   to   its   functioning   and   also   to   contain

       corruption   and   to   hold   Governments   and   their   instrumentalities

       accountable to the governed;


       And   whereas   revelation   of   information   in   actual   practice   is   likely   to

       conflict   with   other   public   interests   including   efficient   operations   of   the

       Governments,   optimum   use   of   limited   fiscal   resources   and   the

       preservation of confidentiality of sensitive information;


       And whereas it is necessary to harmonise these conflicting interests while

       preserving the paramountcy of the democratic ideal."





Chapter   II   of   the   Act   containing   sections   3   to   11   deals   with   right   to


information   and   obligations   of   public   authorities.   Section   3   provides   for


right to information and reads thus:   "Subject to the provisions of this Act,


all citizens shall have the right to information." This section makes it clear


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that the RTI Act gives a right to a citizen to only access information, but not


seek   any   consequential   relief   based   on   such   information.   Section   4   deals


with obligations of public authorities to maintain the records in the manner


provided   and   publish   and   disseminate   the   information   in   the   manner


provided.   Section   6   deals   with   requests   for   obtaining   information.   It


provides   that   applicant   making   a   request   for   information   shall   not   be


required to give any reason for requesting the information or any personal


details   except   those   that   may   be   necessary   for   contacting   him.     Section   8


deals with exemption from disclosure of information and is extracted in its


entirety:



        "8. Exemption   from  disclosure  of  information  --  (1) Notwithstanding

        anything contained in this Act,  there shall be no obligation to give any

        citizen,-

       

        (a)                        information,   disclosure   of   which   would

        prejudicially   affect   the   sovereignty   and   integrity   of   India,   the   security,

        strategic, scientific or economic interests of the State, relation with foreign

        State or lead to incitement of an offence;

       

        (b)                        information  which has been expressly forbidden to

        be  published  by  any court  of  law  or tribunal   or the   disclosure  of which

        may constitute contempt of court;

       

        (c)                        information, the disclosure of which would cause a

        breach of privilege of Parliament or the State Legislature;

       

        (d)                        information including commercial confidence, trade

        secrets   or   intellectual   property,   the   disclosure   of   which   would   harm   the

        competitive   position   of   a   third   party,   unless   the   competent   authority   is

        satisfied   that   larger   public   interest   warrants   the   disclosure   of   such

        information;

       


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(e)                          information available to a person in his fiduciary

relationship, unless the competent authority is satisfied that the larger

public interest warrants the disclosure of such information;



(f)                           information   received   in   confidence   from   foreign

Government;



(g)                          information,   the   disclosure   of   which   would

endanger the life or physical safety of any person or identify the source of

information   or   assistance   given   in   confidence   for   law   enforcement   or

security purposes;



(h)                          information   which   would   impede   the   process   of

investigation or apprehension or prosecution of offenders;



(i)                          cabinet papers including records of deliberations of

the Council of Ministers, Secretaries and other officers:



Provided that the decisions of Council of Ministers, the reasons  thereof,

and the material on the basis of which the decisions were taken shall be

made public after the decision has been taken, and the matter is complete,

or over:



Provided   further   that   those   matters   which   come   under   the   exemptions

specified in this section shall not be disclosed;



(j)                          information   which   relates   to   personal   information

the   disclosure   of   which   has   no   relationship   to   any   public   activity   or

interest, or which would cause unwarranted invasion of the privacy of the

individual   unless   the   Central   Public   Information   Officer   or   the   State

Public Information Officer or the appellate authority, as the case may be,

is   satisfied   that   the   larger   public   interest   justifies   the   disclosure   of   such

information:



Provided that the information which cannot be denied to the Parliament or

a State Legislature shall not be denied to any person.



(2)                          Notwithstanding   anything   in   the   Official   Secrets

Act,   1923   (19   of   1923)   nor   any   of   the   exemptions   permissible   in

accordance   with  sub-section   (1),  a  public   authority  may   allow  access   to

information,   if   public   interest   in   disclosure   outweighs   the   harm   to   the

protected interests.



(3)                          Subject to the provisions of clauses (a), (c) and (i)

of   sub-section   (1),   any   information   relating   to   any   occurrence,   event   or

matter which has taken place, occurred or happened twenty years  before


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       the date on which any request is made under secton 6 shall be provided to

       any person making a request under that section:

       

       Provided that where any question arises as to the date from which the said

       period   of   twenty   years   has   to   be   computed,   the   decision   of   the   Central

       Government shall be final, subject to the usual appeals provided for in this

       Act."

                                                                              (emphasis supplied)





Section   9 provides  that without   prejudice  to  the provisions  of section  8,  a


request   for   information   may   be   rejected   if   such   a   request   for   providing


access   would   involve   an   infringement  of   copyright.   Section   10   deals   with


severability of exempted information and sub-section (1) thereof is extracted


below:




       "(1) Where a request for access to information is rejected on the ground

       that it is in relation to information which is exempt from disclosure, then,

       notwithstanding anything contained in this Act, access may be provided to

       that  part of the record which does  not contain  any information  which is

       exempt   from   disclosure   under   this   Act   and   which   can   reasonably   be

       severed from any part that contains exempt information."




Section 11 deals with third party information and sub-section (1) thereof is


extracted below:




       "(1)   Where   a   Central   Public   Information   Officer   or   a   State   Public

       Information   Officer,   as   the   case   may   be,   intends   to   disclose   any

       information  or record, or part thereof on a request made under this Act,

       which relates to or has been supplied by a third party and has been treated

       as confidential by that third party, the Central Public Information Officer

       or State Public Information Officer, as the case may be, shall, within five

       days   from   the   receipt   of  the   request,   give   a   written   notice   to   such   third

       party   of   the   request   and   of   the   fact   that   the   Central   Public   Information

       Officer or State Public Information Officer, as the case may be, intends to


                                                      16



        disclose   the   information   or   record,   or   part   thereof,   and   invite   the   third

        party   to   make   a   submission   in   writing   or   orally,   regarding   whether   the

        information   should  be  disclosed,   and  such   submission   of  the  third  party

        shall   be   kept   in   view   while   taking   a   decision   about   disclosure   of

        information:

       


        Provided that except in the case of trade or commercial secrets protected

        by   law,   disclosure   may   be   allowed   if   the   public   interest   in   disclosure

        outweighs   in   importance   any  possible   harm   or   injury   to   the   interests   of

        such third party."





The   definitions   of  information,   public   authority,   record   and   right   to


information  in   clauses   (f),   (h),   (i)   and   (j)   of   section   2   of   the   RTI   Act   are


extracted below:




        "(f)   "information"   means   any   material   in   any   form,   including   records,

        documents,   memos,   e-mails,   opinions,   advices,   press   releases,   circulars,

        orders, logbooks, contracts, reports, papers, samples, models, data material

        held in any electronic form and information relating to any private body

        which can be accessed by a public authority under any other law for the

        time being in force;

       

        (h) "public authority" means any authority or body or institution of self-

        government established or constituted-

       

        (a) by or under the Constitution;

       

        (b) by any other law made by Parliament;

       

        (c) by any other law made by State Legislature;

       

        (d) by notification issued or order made by the appropriate Government,

        and includes any-

       

        (i) body owned, controlled or substantially financed;

       

        (ii) non-Government organisation substantially financed,

        directly or indirectly by funds provided by the appropriate Government;


                                                  17



       (i) "record" includes-

       

             (a) any document, manuscript and file;

             

             (b) any microfilm, microfiche and facsimile copy of a document;

             

             (c) any reproduction of image or images embodied in such microfilm

             (whether enlarged or not); and

             

             (d) any other material produced by a computer or any other device;

       

       (j) "right to information" means the right to information accessible under

       this Act which is held by or under the control of any public authority and

       includes the right to-

       

             (i) inspection of work, documents, records;

             

             (ii) taking notes, extracts or certified copies of documents or records;

             

             (iii) taking certified samples of material;

             

             (iv)  obtaining   information   in  the  form  of diskettes,   floppies,  tapes,

             video cassettes or in any other electronic mode or through printouts

             where   such   information   is   stored   in   a   computer   or   in   any   other

             device;





Section   22  provides   for   the  Act   to  have   overriding   effect   and   is  extracted


below:  


       "The   provisions   of   this   Act   shall   have   effect   notwithstanding   anything

       inconsistent therewith contained in the Official  Secrets Act, 1923 (19 of

       1923), and any other law for the time being in force or in any instrument

       having effect by virtue of any law other than this Act."




10.    It will also be useful to refer to a few decisions of this Court which


considered the importance and scope of the right to information. In State of


Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:


                                                    18



      "In a government of responsibility like ours, where all the agents of the

      public   must   be   responsible   for   their   conduct,   there   can   but   few   secrets.

      The   people   of   this   country   have   a   right   to   know   every   public   act,

      everything,   that   is   done   in   a   public   way,   by   their   public   functionaries.

      They are entitled to know the particulars of every public transaction in all

      its   bearing.   The   right   to   know,   which   is   derived   from   the   concept   of

      freedom of speech, though not absolute, is a factor which should make one

      wary,   when   secrecy   is   claimed   for   transactions   which   can,   at   any   rate,

      have no repercussion on public security."

                                                                           (emphasis supplied)





In Dinesh Trivedi v. Union of India - (1997) 4 SCC 306, this Court held:


      "In modern constitutional democracies, it is axiomatic that citizens have a

      right   to   know   about   the   affairs   of   the   Government   which,   having   been

      elected by them, seeks to formulate sound policies of governance aimed at

      their welfare. However, like all other rights, even this right has recognised

      limitations;   it   is,   by   no   means,   absolute. ..................Implicit   in   this

      assertion   is   the   proposition   that   in   transaction   which   have   serious

      repercussions   on   public   security,   secrecy   can   legitimately   be   claimed

      because it would then be in the public  interest  that  such  matters  are not

      publicly disclosed or disseminated.


      To   ensure   the   continued   participation   of   the   people   in   the   democratic

      process,   they   must   be   kept   informed   of   the   vital   decisions   taken   by   the

      Government   and   the   basis   thereof.   Democracy,   therefore,   expects

      openness and openness is a concomitant of a free society. Sunlight is the

      best disinfectant. But it is equally important to be alive to the dangers that

      lie ahead. It is important to realise that undue popular pressure brought to

      bear on decision-makers is Government can have frightening side-effects.

      If   every   action   taken   by   the   political   or   executive   functionary   is

      transformed into a public controversy and made subject to an enquiry to

      soothe popular sentiments, it will undoubtedly have a chilling effect on the

      independence of the decision-maker who may find it safer not to take any

      decision. It will paralyse the entire system and bring it to a grinding halt.

      So we have two conflicting situations almost enigmatic and we think the

      answer is to maintain a fine balance which would serve public interest."





In People's Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,


this Court held that right of information is a facet of the freedom of "speech


                                               19



and expression" as contained in Article 19(1)(a) of the Constitution of India


and such a right is subject to any reasonable restriction in the interest of the


security of the state and subject to exemptions and exceptions.




Re : Question (i)




11.     The definition of `information' in section 2(f) of the RTI Act refers to


any   material   in   any   form   which   includes   records,   documents,   opinions,


papers among several other enumerated items. The term `record' is defined


in section 2(i) of the said Act as including any document, manuscript or file


among others. When a candidate participates in an examination and writes


his   answers   in   an   answer-book   and   submits   it   to   the   examining   body   for


evaluation  and declaration of the result, the answer-book is a document or


record. When the answer-book is evaluated by an examiner appointed by the


examining   body,   the   evaluated   answer-book   becomes   a   record   containing


the `opinion' of the examiner. Therefore the evaluated answer-book is also


an `information' under the RTI Act.





12.     Section   3  of  RTI   Act   provides   that  subject   to   the  provisions   of  this


Act   all   citizens   shall   have  the   right   to   information.   The   term   `right   to


information'  is defined in section 2(j) as the right to information accessible


                                                20



under the Act which is held by or under the control of any public authority.


Having   regard   to   section   3,   the   citizens   have   the   right   to   access   to   all


information held by or under the control of any public authority except those


excluded or exempted under the Act. The object of the Act is to empower


the citizens  to fight against  corruption  and hold the Government and their


instrumentalities   accountable   to   the   citizens,   by   providing   them   access   to


information   regarding   functioning   of   every   public   authority.   Certain


safeguards have been built into the Act so that the revelation of information


will not conflict with other public interests which include efficient operation


of   the   governments,   optimum   use   of   limited   fiscal   resources   and


preservation of confidential and sensitive information. The RTI Act provides


access to information held by or under the control of public authorities and


not in regard to information held by any private  person. The Act provides


the   following   exclusions   by   way   of   exemptions   and   exceptions   (under


sections 8, 9 and 24) in regard to information held by public authorities:




(i)     Exclusion of the Act in entirety under section 24 to intelligence and


        security organizations specified in the Second Schedule even though


        they   may   be   "public   authorities",   (except   in   regard   to   information


        with   reference   to   allegations   of   corruption   and   human   rights


        violations).


                                                 21



(ii)     Exemption   of   the   several   categories   of   information   enumerated   in


         section   8(1)   of   the   Act   which   no   public   authority   is   under   an


         obligation to give to any citizen, notwithstanding anything contained


         in   the   Act   [however,   in   regard   to   the   information   exempted   under


         clauses   (d)   and   (e),   the   competent   authority,   and   in   regard   to   the


         information   excluded   under   clause   (j),   Central   Public   Information


         Officer/State Public Information Officer/the Appellate Authority, may


         direct  disclosure   of information,  if   larger  public  interest  warrants  or


         justifies the disclosure].



(iii)    If   any   request   for   providing   access   to   information   involves   an


         infringement of a copyright subsisting in a person other than the State,


         the   Central/State   Public   Information   Officer   may   reject   the   request


         under section 9 of RTI Act.




Having   regard   to   the   scheme   of   the   RTI   Act,   the   right   of   the   citizens   to


access   any   information   held   or   under   the   control   of   any   public   authority,


should be read in harmony with the exclusions/exemptions in the Act.





13.      The examining bodies (Universities, Examination Boards, CBSC etc.)


are   neither   security   nor   intelligence   organisations   and   therefore   the


exemption   under   section   24   will   not   apply   to   them.   The   disclosure   of


information   with   reference   to   answer-books   does   not   also   involve


infringement   of   any   copyright   and   therefore   section   9   will   not   apply.


                                                 22



Resultantly,   unless   the   examining   bodies   are   able   to   demonstrate   that   the


evaluated   answer-books   fall   under   any   of   the   categories   of   exempted


`information'  enumerated  in clauses  (a) to (j) of sub-section  (1) section 8,


they will  be bound to provide access to the information and any applicant


can   either   inspect   the   document/record,   take   notes,   extracts   or   obtain


certified copies thereof.





14.     The   examining   bodies   contend   that   the   evaluated   answer-books   are


exempted from disclosure under section 8(1)(e) of the RTI Act, as they are


`information'   held   in   its   fiduciary   relationship.   They   fairly   conceded   that


evaluated   answer-books   will   not   fall   under   any   other   exemptions   in   sub-


section   (1)   of   section   8.   Every   examinee   will   have   the   right   to   access   his


evaluated  answer-books,  by  either  inspecting  them  or  take  certified  copies


thereof, unless the evaluated answer-books are found to be exempted under


section 8(1)(e) of the RTI Act.




Re : Question (ii)




15.     In  Maharashtra   State   Board,  this   Court   was   considering   whether


denial  of  re-evaluation   of answer-books   or  denial   of disclosure   by   way  of


inspection of answer books, to an examinee, under Rule 104(1) and (3) of


                                                     23



the  Maharashtra  Secondary   and Higher  Secondary   Board  Rules,  1977  was


violative of principles of natural justice and violative of Articles 14 and 19


of the Constitution of India. Rule 104(1) provided that no re-evaluation of


the   answer   books   shall   be   done   and   on   an   application   of   any   candidate


verification will be restricted to checking whether all the answers have been


examined   and   that   there   is   no   mistake   in   the   totalling   of   marks   for   each


question  in that subject and  transferring  marks correctly  on the first  cover


page of the answer book. Rule 104(3) provided that no candidate shall claim


or be entitled to re-evaluation of his answer-books or inspection of answer-


books as they were treated as confidential. This Court while upholding the


validity of Rule 104(3) held as under :




        "....   the   "process   of   evaluation   of   answer   papers   or   of   subsequent

        verification of marks" under Clause (3) of Regulation 104 does not attract

        the principles  of natural justice  since no decision  making process which

        brings about adverse civil consequences to the examinees in involved. The

        principles   of   natural   justice   cannot   be   extended   beyond   reasonable   and

        rational limits and cannot be carried to such absurd lengths as to make it

        necessary that candidates who have taken a public examination should be

        allowed to participate in the process of evaluation of their performances or

        to   verify   the   correctness   of   the   evaluation   made   by   the   examiners   by

        themselves conducting an inspection of the answer-books and determining

        whether there has been a proper and fair valuation of the answers by the

        examiners."


        So   long   as   the   body   entrusted   with   the   task   of   framing   the   rules   or

        regulations   acts  within  the  scope  of the  authority  conferred  on  it,  in  the

        sense that the rules or regulations made by it have a rational nexus with

        the object  and purpose of the statute, the court should not concern itself

        with   the   wisdom   or   efficaciousness   of   such   rules   or   regulations....   The

        Legislature and its delegate are the sole repositories of the power to decide

        what policy should be pursued in relation to matters covered by the Act ...


                                                        24



        and  there is no scope  for interference by the  Court unless  the  particular

        provision   impugned   before   it   can   be   said   to   suffer   from   any   legal

        infirmity,   in   the   sense   of   its   being   wholly   beyond   the   scope   of   the

        regulation   making   power   or   its   being   inconsistent   with   any   of   the

        provisions of the parent enactment or in violation of any of the limitations

        imposed by the Constitution.




        It was perfectly within the competence of the Board, rather it was its plain

        duty,   to   apply   its   mind   and   decide   as   a   matter   of   policy   relating   to   the

        conduct of the examination as to whether disclosure and inspection of the

        answer  books should be allowed to the candidates,  whether and to what

        extent verification of the result should be permitted after the results have

        already been announced and whether any right to claim revaluation of the

        answer   books   should   be   recognised   or   provided   for.   All   these   are

        undoubtedly  matters  which  have  an  intimate   nexus   with  the  objects  and

        purposes   of   the   enactment   and   are,   therefore,   with   in   the   ambit   of   the

        general power to make regulations...."





This Court held that Regulation  104(3)  cannot be held to be unreasonable


merely   because   in   certain   stray   instances,   errors   or   irregularities   had   gone


unnoticed even after verification  of the concerned answer books according


to the existing procedure and it was only after further scrutiny made either


on orders of the court or in the wake of contentions raised in the petitions


filed   before   a   court,   that   such   errors   or   irregularities   were   ultimately


discovered. This court reiterated the view that "the test of reasonableness is


not applied in vacuum but in the context of life's realities" and concluded


that   realistically   and  practically,   providing   all  the   candidates   inspection   of


their answer books or re-evaluation of the answer books in the presence of


the candidates would not be feasible. Dealing with the contention that every


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student is entitled to fair play in examination and receive marks matching his


performance, this court held :




       "What   constitutes   fair   play   depends   upon   the   facts   and   circumstances

       relating to each particular given situation. If it is found that every possible

       precaution has been taken and all necessary safeguards provided to ensure

       that the answer books inclusive of supplements are kept in safe custody so

       as   to   eliminate   the   danger   of   their   being   tampered   with   and   that   the

       evaluation   is   done   by   the   examiners   applying   uniform   standards   with

       checks and crosschecks at different stages and that measures for detection

       of   malpractice,   etc.   have   also   been   effectively   adopted,   in   such   cases   it

       will not be correct on the part of the Courts to strike down, the provision

       prohibiting revaluation on the ground that it violates the rules of fair play.

       It appears that the procedure evolved by the Board for ensuring fairness

       and accuracy in evaluation of the answer books has made the system as

       fool proof as can be possible and is entirely satisfactory. The Board is a

       very   responsible   body.  The   candidates   have   taken   the   examination   with

       full awareness  of the  provisions contained in the Regulations  and in the

       declaration   made   in   the   form   of   application   for   admission   to   the

       examination they have solemnly stated that they fully agree to abide by the

       regulations issued by the Board. In the circumstances, when we find that

       all   safeguards   against   errors   and   malpractices   have   been   provided   for,

       there   cannot   be   said   to   be   any   denial   of   fair   play   to   the   examinees   by

       reason of the prohibition against asking for revaluation.... "





This Court concluded that if inspection and verification  in the presence of


the candidates, or revaluation, have to be allowed as of right, it may lead to


gross and indefinite uncertainty, particularly in regard to the relative ranking


etc.   of  the   candidate,   besides  leading   to   utter   confusion  on   account   of  the


enormity   of   the   labour   and   time   involved   in   the   process.   This   court


concluded :


                                                      26



        "... the Court should be extremely reluctant to substitute its own views as

        to   what   is   wise,   prudent   and   proper   in   relation   to   academic   matters   in

        preference  to those formulated  by professional  men possessing technical

        expertise and rich experience of actual day-to-day working of educational

        institutions and the departments controlling them. It will be wholly wrong

        for   the   court   to   make   a   pedantic   and   purely   idealistic   approach   to   the

        problems  of  this  nature,  isolated  from   the  actual   realities  and   grass  root

        problems   involved   in   the   working   of   the   system   and   unmindful   of   the

        consequences which would emanate if a purely idealistic view as opposed

        to a pragmatic one were to be propounded."




16.     The   above   principles   laid   down   in  Maharashtra   State   Board  have


been   followed   and   reiterated   in   several   decisions   of   this   Court,   some   of


which   are   referred   to   in   para   (6)   above.   But   the   principles   laid   down   in


decisions such as  Maharashtra State Board  depend upon the provisions of


the rules and regulations of the examining body. If the rules and regulations


of the examining body provide for re-evaluation, inspection or disclosure of


the answer-books, then none of the principles in Maharashtra State Board or


other   decisions   following   it,   will   apply   or   be   relevant.   There   has   been   a


gradual change in trend with several examining bodies permitting inspection


and disclosure of the answer-books.





17.     It   is   thus   now   well   settled   that   a   provision   barring   inspection   or


disclosure   of   the   answer-books   or   re-evaluation   of   the   answer-books   and


restricting   the   remedy   of   the   candidates   only   to   re-totalling   is   valid   and


binding   on   the   examinee.   In   the   case   of   CBSE,   the   provisions   barring   re-


                                                27



evaluation and inspection contained in Bye-law No.61, are akin to Rule 104


considered in Maharashtra State Board. As a consequence if an examination


is governed only by the rules and regulations of the examining body which


bar   inspection,   disclosure   or   re-evaluation,   the   examinee   will   be   entitled


only   for   re-totalling   by   checking   whether   all   the   answers   have   been


evaluated   and   further   checking   whether   there   is   no   mistake   in   totaling   of


marks   for   each   question   and   marks   have   been   transferred   correctly   to   the


title   (abstract)   page.   The   position   may   however   be   different,   if   there   is   a


superior statutory right entitling the examinee, as a citizen to seek access to


the answer books, as information.





18.     In   these   cases,   the   High   Court   has   rightly   denied   the   prayer   for   re-


evaluation   of   answer-books   sought   by   the   candidates   in   view   of   the   bar


contained in the rules and regulations of the examining bodies. It is also not


a   relief   available   under   the   RTI   Act.   Therefore   the   question   whether   re-


evaluation should be permitted or not, does not arise for our consideration.


What   arises   for   consideration   is   the   question   whether   the   examinee   is


entitled   to   inspect   his   evaluated   answer-books   or   take   certified   copies


thereof. This right is claimed by the students, not with reference to the rules


or bye-laws of examining bodies, but under the RTI Act which enables them


                                              28



and entitles them to have access to the answer-books as  `information' and


inspect   them   and   take   certified   copies   thereof.   Section   22   of   RTI   Act


provides that the provisions of the said Act will have effect, notwithstanding


anything inconsistent therewith contained in any other law for the time being


in   force.   Therefore   the   provisions   of   the   RTI   Act   will   prevail   over   the


provisions   of   the   bye-laws/rules   of   the   examining   bodies   in   regard   to


examinations. As a result, unless the examining body is able to demonstrate


that   the   answer-books   fall   under   the   exempted   category   of   information


described in clause (e) of section 8(1) of RTI Act, the examining body will


be bound to provide access to an examinee to inspect and take copies of his


evaluated answer-books, even if such inspection or taking copies is barred


under the rules/bye-laws of the examining body governing the examinations.


Therefore,   the   decision   of   this   Court   in  Maharashtra   State   Board  (supra)


and the subsequent decisions following the same, will not affect or interfere


with the right of the examinee seeking inspection of answer-books or taking


certified copies thereof.




Re : Question (iii)




19.    Section   8(1)   enumerates   the   categories   of   information   which   are


exempted   from   disclosure   under   the   provisions   of   the   RTI   Act.   The


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examining bodies rely upon clause (e) of section 8(1) which provides that


there   shall   be   no   obligation   on   any   public   authority   to   give   any   citizen,


information   available   to   it   in   its   fiduciary   relationship.   This   exemption   is


subject to the condition that if the competent authority (as defined in section


2(e)   of   RTI   Act)   is   satisfied   that   the   larger   public   interest   warrants   the


disclosure   of   such   information,   the   information   will   have   to   be   disclosed.


Therefore  the question is whether the examining body holds the evaluated


answer-books in its fiduciary relationship.





20.     The   term   `fiduciary'   and   `fiduciary   relationship'   refer   to   different


capacities and relationship, involving a common duty or obligation.




20.1)   Black's   Law   Dictionary  (7th  Edition,   Page   640)   defines   `fiduciary


relationship' thus:


        "A relationship  in which one person is under a duty to act for the benefit

        of   the   other   on   matters   within   the   scope   of   the   relationship.   Fiduciary

        relationships - such as trustee-beneficiary, guardian-ward, agent-principal,

        and   attorney-client   -   require   the   highest   duty   of   care.   Fiduciary

        relationships usually arise in one of four situations : (1) when one person

        places   trust   in   the   faithful   integrity   of   another,   who   as   a   result   gains

        superiority   or   influence   over   the   first,   (2)   when   one   person   assumes

        control and responsibility over another, (3) when one person has a duty to

        act for or give advice to another on matters falling within the scope of the

        relationship,   or   (4)   when   there   is   a   specific   relationship   that   has

        traditionally   been   recognized   as   involving   fiduciary   duties,   as   with   a

        lawyer and a client or a stockbroker and a customer."


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20.2) The American Restatements (Trusts and Agency) define `fiduciary' as


one whose intention is to act for the benefit of another as to matters relevant


to the relation between them. The  Corpus Juris Secundum  (Vol. 36A page


381) attempts to define fiduciary thus :


      "A general definition of the word which is sufficiently comprehensive to

      embrace all cases cannot well be given. The term is derived from the civil,

      or Roman, law. It connotes the idea of trust or confidence, contemplates

      good   faith,   rather   than   legal   obligation,   as   the   basis   of   the   transaction,

      refers   to   the   integrity,   the   fidelity,   of   the   party   trusted,   rather   than   his

      credit or ability, and has been held to apply to all persons who occupy a

      position   of   peculiar   confidence   toward   others,   and   to   include   those

      informal   relations   which   exist   whenever   one   party   trusts   and   relies   on

      another, as well as technical fiduciary relations.


      The word `fiduciary,' as a noun, means one who holds a thing in trust for

      another,   a   trustee,   a   person   holding   the   character   of   a   trustee,   or   a

      character   analogous   to   that   of   a   trustee,   with   respect   to   the   trust   and

      confidence involved in it and the scrupulous good faith and candor which

      it   requires;   a   person   having   the   duty,  created   by   his   undertaking,   to   act

      primarily   for   another's   benefit   in   matters   connected   with   such

      undertaking.   Also   more   specifically,   in   a   statute,   a   guardian,   trustee,

      executor, administrator, receiver, conservator, or any person acting in any

      fiduciary capacity for any person, trust, or estate. Some examples of what,

      in   particular   connections,   the   term   has   been   held   to   include   and   not   to

      include are set out in the note."




20.3) Words and Phrases, Permanent Edition  (Vol. 16A, Page 41) defines


`fiducial relation' thus :


      "There   is   a   technical   distinction   between   a   `fiducial   relation'   which   is

      more   correctly  applicable  to   legal   relationships   between   parties,   such  as

      guardian   and   ward,   administrator   and   heirs,   and   other   similar

      relationships,   and   `confidential   relation'   which   includes   the   legal

      relationships,   and   also   every   other   relationship   wherein   confidence   is

      rightly reposed and is exercised.


      Generally,   the   term   `fiduciary'   applies   to   any   person   who   occupies   a

      position of peculiar confidence towards another. It refers to integrity and


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       fidelity.   It   contemplates   fair   dealing   and   good   faith,   rather   than   legal

       obligation,   as   the   basis   of   the   transaction.   The   term   includes   those

       informal relations which exist whenever one party trusts and relies upon

       another, as well as technical fiduciary relations."




20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term


fiduciary was defined thus :


       "A  fiduciary  is someone who has undertaken to act for and on behalf of

       another   in   a   particular   matter   in   circumstances   which   give   rise   to   a

       relationship   of   trust   and   confidence.   The   distinguishing   obligation   of   a

       fiduciary is the obligation of loyalty..... A fiduciary must act in good faith;

       he must not make a profit out of his trust; he must not place himself in a

       position where his duty and his interest may conflict; he may not act for

       his   own   benefit   or   the   benefit   of   a   third   person   without   the   informed

       consent of his principal."





20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the


California Court of Appeals defined fiduciary relationship as under :




       "any relationship existing between the parties to the transaction where one

       of the parties is duty bound to act with utmost good faith for the benefit of

       the other party. Such a relationship ordinarily arises where confidence is

       reposed by one person in the integrity of another, and in such a relation the

       party   in   whom   the   confidence   is   reposed,   if   he   voluntarily   accepts   or

       assumes   to   accept   the   confidence,   can   take   no   advantage   from   his   acts

       relating to the interests of the other party without the latter's knowledge

       and consent."




21.    The   term  `fiduciary'   refers   to   a   person   having   a   duty   to   act   for   the


benefit of another, showing good faith and condour, where such other person


reposes trust and special confidence in the person owing or discharging the


duty.   The   term   `fiduciary   relationship'  is   used   to   describe   a   situation   or


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transaction   where   one   person   (beneficiary)   places   complete   confidence   in


another person (fiduciary) in regard to his affairs, business or transaction/s.


The   term   also   refers   to   a   person   who   holds   a   thing   in   trust   for   another


(beneficiary).   The   fiduciary   is   expected   to   act   in   confidence   and   for   the


benefit and advantage of the beneficiary, and use good faith and fairness in


dealing with the beneficiary or the things belonging to the beneficiary. If the


beneficiary has entrusted anything to the fiduciary, to hold the thing in trust


or to execute certain acts in regard to or with reference to the entrusted thing,


the fiduciary has to act in confidence and expected not to disclose the thing


or information to any third party. There are also certain relationships where


both the parties have to act in a fiduciary capacity treating the other as the


beneficiary. Examples of these are : a partner vis-`-vis another partner and


an employer  vis-`-vis employee. An employee who comes into possession


of   business   or   trade   secrets   or   confidential   information   relating   to   the


employer in the course of his employment, is expected to act as a fiduciary


and cannot disclose it to others. Similarly, if on the request of the employer


or official superior or the head of a department, an employee furnishes his


personal details and information, to be retained in confidence, the employer,


the official superior or departmental head is expected to hold such personal


information in confidence as a fiduciary, to be made use of or disclosed only


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if the employee's conduct or acts are found to be prejudicial to the employer.




22.     In a philosophical and very wide sense, examining bodies can be said


to act in a fiduciary capacity, with reference to students who participate in an


examination,   as   a   government   does   while   governing   its   citizens   or   as   the


present   generation   does   with   reference   to   the   future   generation   while


preserving   the   environment.   But   the   words   `information   available   to   a


person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in


its normal and well recognized sense, that is to refer to persons who act in a


fiduciary capacity, with reference  to a specific beneficiary  or beneficiaries


who   are   to   be   expected   to   be   protected   or   benefited   by   the   actions   of   the


fiduciary - a trustee with reference to the beneficiary of the trust, a guardian


with   reference   to   a   minor/physically/infirm/mentally   challenged,   a   parent


with reference to a child, a lawyer or a chartered accountant with reference


to   a   client,   a   doctor   or   nurse   with   reference   to   a   patient,   an   agent   with


reference   to   a   principal,   a   partner   with   reference   to   another   partner,   a


director   of   a   company   with   reference   to   a   share-holder,   an   executor   with


reference   to   a   legatee,   a   receiver   with   reference   to   the   parties   to   a   lis,   an


employer   with   reference   to   the   confidential   information   relating   to   the


employee, and an employee with reference to business dealings/transaction


of the employer. We do not find that kind of fiduciary relationship between


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the   examining   body   and   the   examinee,   with   reference   to   the   evaluated


answer-books, that come into the custody of the examining body.





23.    The duty of examining bodies is to subject the candidates who have


completed a course  of study  or a period of training in accordance with its


curricula,   to   a   process   of   verification/examination/testing   of   their


knowledge, ability or skill, or to ascertain whether they can be said to have


successfully   completed   or   passed   the   course   of   study   or   training.   Other


specialized Examining Bodies may simply subject candidates to a process of


verification by an examination, to find out whether such person is suitable


for a particular post, job or assignment. An examining body, if it is a public


authority   entrusted   with   public   functions,   is   required   to   act   fairly,


reasonably,   uniformly   and   consistently   for   public   good   and   in   public


interest. This Court has explained the role of an examining body in regard to


the process of holding examination in the context of examining whether it


amounts to `service' to a consumer, in Bihar School Examination Board vs.


Suresh Prasad Sinha - (2009) 8 SCC 483, in the following manner:




       "The   process   of   holding   examinations,   evaluating   answer   scripts,

       declaring   results   and   issuing   certificates   are   different   stages   of   a   single

       statutory   non-commercial   function.   It   is   not   possible   to   divide   this

       function   as   partly   statutory   and   partly   administrative.   When   the

       Examination Board conducts an examination in discharge of its statutory

       function,   it   does   not   offer   its   "services"   to   any   candidate.   Nor   does   a


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       student who participates in the examination conducted by the Board, hires

       or avails of any service from the Board for a consideration. On the other

       hand,   a  candidate  who  participates  in  the  examination  conducted  by the

       Board, is a person who has undergone a course of study and who requests

       the Board to test him as to whether he has imbibed sufficient knowledge to

       be fit to be declared as having successfully completed the said course of

       education; and if so, determine his position or rank or competence vis-a-

       vis other examinees. The process is not therefore availment of a service by

       a   student,   but   participation   in   a   general   examination   conducted   by   the

       Board to ascertain whether he is eligible and fit to be considered as having

       successfully completed the secondary education course. The examination

       fee   paid   by   the   student   is   not   the   consideration   for   availment   of   any

       service,   but   the   charge   paid   for   the   privilege   of   participation   in   the

       examination..........   The   fact   that   in   the   course   of   conduct   of   the

       examination, or evaluation of answer-scripts, or furnishing of mark-books

       or   certificates,   there   may   be   some   negligence,   omission   or   deficiency,

       does not convert the Board into a service-provider for a consideration, nor

       convert the examinee into a consumer ........."





It   cannot   therefore   be   said   that   the   examining   body   is   in   a   fiduciary


relationship   either   with   reference   to   the   examinee   who   participates   in   the


examination and whose answer-books are evaluated by the examining body.





24.    We may next consider whether an examining body would be entitled


to claim exemption under section 8(1)(e) of the RTI Act, even assuming that


it is in a fiduciary relationship with the examinee. That section provides that


notwithstanding anything contained in the Act, there shall be no obligation


to   give   any   citizen  information   available   to   a   person   in   his   fiduciary


relationship. This would only mean that even if the relationship is fiduciary,


the exemption would operate in regard to giving access to the information


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held   in   fiduciary   relationship,   to   third   parties.   There   is   no   question   of  the


fiduciary   withholding   information   relating   to   the   beneficiary,   from   the


beneficiary himself. One of the duties of the fiduciary is to make thorough


disclosure   of   all   relevant   facts   of   all   transactions   between   them   to   the


beneficiary, in a fiduciary relationship. By that logic, the examining body, if


it is in a fiduciary relationship with an examinee, will be liable to make a full


disclosure  of the evaluated answer-books to the examinee  and at the same


time, owe a duty to the examinee not to disclose the answer-books to anyone


else.   If   A   entrusts   a   document   or   an   article   to   B   to   be   processed,   on


completion of processing, B is not expected to give the document or article


to   anyone   else   but   is   bound   to   give   the   same   to   A   who   entrusted   the


document   or   article   to   B   for   processing.   Therefore,   if   a   relationship   of


fiduciary and beneficiary  is assumed  between the examining body and the


examinee with reference to the answer-book, section 8(1)(e) would operate


as an exemption to prevent access to any third party and will not operate as a


bar for the very person who wrote  the answer-book, seeking  inspection or


disclosure of it.





25.     An   evaluated   answer   book   of   an   examinee   is   a   combination   of   two


different `informations'. The first is the answers written by the examinee and


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second is the marks/assessment by the examiner. When an examinee seeks


inspection   of   his   evaluated   answer-books   or   seeks   a   certified   copy   of   the


evaluated   answer-book,   the   information   sought   by   him   is   not   really   the


answers he has written in the answer-books (which he already knows), nor


the total marks assigned for the answers (which has been declared). What he


really seeks is the information relating to the break-up of marks, that is, the


specific   marks   assigned   to   each   of   his   answers.   When   an   examinee   seeks


`information' by inspection/certified copies of his answer-books, he knows


the   contents   thereof   being   the   author   thereof.   When   an   examinee   is


permitted   to   examine   an   answer-book   or   obtain   a   certified   copy,   the


examining body is not really giving him some information which is held by


it in trust or confidence, but is only giving him an opportunity to read what


he had written at the time of examination or to have a copy of his answers.


Therefore, in furnishing the copy of an answer-book, there is no question of


breach of confidentiality, privacy, secrecy or trust. The real issue therefore is


not   in   regard   to   the   answer-book   but   in   regard   to   the   marks   awarded   on


evaluation   of   the   answer-book.   Even   here   the   total   marks   given   to   the


examinee in regard to his answer-book are already declared and known to


the examinee. What the examinee actually wants to know is the break-up of


marks given to him, that is how many marks were given by the examiner to


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each   of   his   answers   so   that   he   can   assess   how   is   performance   has   been


evaluated   and   whether   the   evaluation   is   proper   as   per   his   hopes   and


expectations. Therefore, the test for finding out whether the information is


exempted   or   not,   is   not   in   regard   to   the   answer   book   but   in   regard   to   the


evaluation by the examiner.





26.     This takes us to the crucial issue of evaluation by the examiner. The


examining   body   engages   or   employs   hundreds   of   examiners   to   do   the


evaluation   of   thousands   of   answer   books.   The   question   is   whether   the


information relating to the `evaluation' (that is assigning of marks) is held


by   the   examining   body   in   a   fiduciary   relationship.   The   examining   bodies


contend that even if fiduciary relationship does not exist with reference to


the   examinee,   it   exists   with   reference   to   the   examiner   who   evaluates   the


answer-books. On a careful examination we find that this contention has no


merit.   The   examining   body   entrusts   the   answer-books   to   an   examiner   for


evaluation   and   pays   the   examiner   for   his   expert   service.   The   work   of


evaluation   and   marking   the   answer-book   is   an   assignment   given   by   the


examining   body   to   the   examiner   which   he   discharges   for   a   consideration.


Sometimes,   an   examiner   may   assess   answer-books,   in   the   course   of   his


employment,   as   a   part   of   his   duties   without   any   specific   or   special


                                               39



remuneration. In other words the examining body is the `principal' and the


examiner is the agent entrusted with the work, that is, evaluation of answer-


books. Therefore,  the examining body is not in the position of a fiduciary


with reference to the examiner. On the other hand, when an answer-book is


entrusted to the examiner for the purpose of evaluation, for the period  the


answer-book   is   in   his   custody   and   to   the   extent   of   the   discharge   of   his


functions relating to evaluation, the examiner is in the position of a fiduciary


with reference to the examining body and he is barred from disclosing the


contents of the answer-book or the result of evaluation of the answer-book to


anyone other than the examining body. Once the examiner has evaluated the


answer books, he ceases to have any interest in the evaluation done by him.


He does not have any copy-right or proprietary right, or confidentiality right


in regard to the evaluation. Therefore it cannot be said that the examining


body holds the evaluated answer books in a fiduciary relationship, qua the


examiner.




27.     We,   therefore,   hold   that   an   examining   body   does   not   hold   the


evaluated   answer-books   in   a   fiduciary   relationship.   Not   being   information


available to an examining body in its fiduciary relationship, the exemption


under section 8(1)(e) is not available to the examining bodies with reference


to     evaluated   answer-books.   As   no   other   exemption   under   section   8   is


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available   in   respect   of  evaluated   answer   books,   the  examining   bodies   will


have to permit inspection sought by the examinees.




Re : Question (iv)


28.     When   an   examining   body   engages   the   services   of   an   examiner   to


evaluate the answer-books, the examining body expects the examiner not to


disclose   the   information   regarding   evaluation   to   anyone   other   than   the


examining   body.   Similarly   the   examiner   also   expects   that   his   name   and


particulars would not be disclosed to the candidates whose answer-books are


evaluated   by   him.   In   the   event   of   such   information   being   made   known,   a


disgruntled examinee who is not satisfied with the evaluation of the answer


books, may act to the prejudice of the examiner by attempting to endanger


his  physical  safety.  Further,  any  apprehension on the  part  of the examiner


that   there   may   be   danger   to   his   physical   safety,   if   his   identity   becomes


known to the examinees, may come in the way of effective discharge of his


duties.   The   above   applies   not   only   to   the   examiner,   but   also   to   the


scrutiniser, co-ordinator, and head-examiner who deal with the answer book.


The answer book usually contains not only the signature and code number of


the examiner, but also the signatures and code number of the scrutiniser/co-


ordinator/head examiner. The information as to the names or particulars of


the   examiners/co-ordinators/scrutinisers/head   examiners   are   therefore


                                               41



exempted from disclosure under section 8(1)(g) of RTI Act, on the ground


that if such information is disclosed, it may endanger their physical safety.


Therefore,   if   the   examinees   are   to   be   given   access   to   evaluated   answer-


books either  by permitting  inspection or by granting  certified  copies, such


access will have to be given only to that part of the answer-book which does


not   contain   any   information   or   signature   of   the   examiners/co-


ordinators/scrutinisers/head   examiners,   exempted   from   disclosure   under


section   8(1)(g)   of   RTI   Act.   Those   portions   of   the   answer-books   which


contain information regarding the examiners/co-ordinators/scrutinisers/head


examiners or which may disclose their identity with reference to signature or


initials,   shall   have   to  be   removed,   covered,   or   otherwise   severed   from  the


non-exempted part of the answer-books, under section 10 of RTI Act.




29.     The   right   to   access   information   does   not   extend   beyond   the   period


during which the examining body is expected to retain the answer-books.  In


the   case   of   CBSE,   the   answer-books   are   required   to   be   maintained   for   a


period   of   three   months   and   thereafter   they   are   liable   to   be   disposed


of/destroyed. Some other examining bodies are required to keep the answer-


books   for   a   period   of   six   months.   The   fact   that   right   to   information   is


available  in regard to answer-books does not mean that answer-books will


have  to  be maintained   for  any  longer  period   than  required  under the  rules


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and regulations of the public authority. The obligation under the RTI Act is


to   make   available   or   give   access   to  existing   information  or   information


which is expected to be preserved or maintained. If the rules and regulations


governing   the   functioning   of   the   respective   public   authority   require


preservation of the information for only a limited period, the applicant for


information   will   be   entitled   to   such   information   only   if   he   seeks   the


information when it is available with the public authority. For example, with


reference to answer-books, if an examinee makes an application to CBSE for


inspection or grant of certified copies beyond three months (or six months or


such   other   period   prescribed   for   preservation   of   the   records   in   regard   to


other   examining   bodies)   from   the   date   of   declaration   of   results,   the


application   could   be   rejected   on   the   ground   that   such   information   is   not


available. The power of the Information Commission under section 19(8) of


the RTI Act to require a public authority to take any such steps as may be


necessary  to   secure   compliance   with   the   provision   of   the   Act,  does   not


include a power to direct the public authority to preserve the information, for


any period larger than what is provided under the rules and regulations of the


public authority.


30.    On behalf of the respondents/examinees, it was contended that having


regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on


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the part of every public authority to maintain the information for a minimum


period of twenty years and make it available  whenever an application was


made in that behalf. This contention is based on a complete misreading and


misunderstanding   of   section   8(3).   The   said   sub-section   nowhere   provides


that   records   or   information   have   to   be   maintained   for   a   period   of   twenty


years. The period for which any particular records or information has to be


maintained  would depend  upon the relevant  statutory  rule or regulation  of


the   public   authority   relating   to   the   preservation   of   records.   Section   8(3)


provides that information relating to any occurrence, event or matters which


has taken place and occurred or happened  twenty  years before the date  on


which any request is made under section 6, shall be provided to any person


making   a   request.   This   means   that   where   any   information   required   to   be


maintained and preserved for a period beyond twenty years under the rules


of   the   public   authority,   is   exempted   from   disclosure   under   any   of   the


provisions   of   section   8(1)   of   RTI   Act,   then,   notwithstanding   such


exemption,   access   to   such   information   shall   have   to   be   provided   by


disclosure thereof, after a period of twenty years except where they relate to


information   falling   under   clauses   (a),   (c)   and   (i)   of   section   8(1).   In   other


words, section 8(3) provides that any protection against disclosure that may


be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to


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be available after twenty years in regard to records which are required to be


preserved for more than twenty years. Where any record or information is


required to be destroyed under the rules and regulations of a public authority


prior to twenty years, section 8(3) will not prevent destruction in accordance


with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring


all `information' to be preserved and maintained for twenty years or more,


nor does it override any rules or regulations governing the period for which


the   record,   document   or   information   is   required   to   be   preserved   by   any


public authority.                  




31.             The effect of the provisions and scheme  of the RTI Act is to divide


`information' into the three categories. They are :  


       (i)         Information   which   promotes  transparency   and   accountability  in

                   the   working   of   every   public   authority,   disclosure   of   which   may

                   also help in containing or discouraging corruption (enumerated in

                   clauses (b) and (c) of section 4(1) of RTI Act).


       (ii)        Other information held by public authority (that is all information

                   other than those falling under clauses (b) and (c) of section 4(1) of

                   RTI Act).


       (iii)       Information   which   is   not   held   by   or   under   the   control   of   any

                   public   authority   and   which   cannot   be   accessed   by   a   public

                   authority under any law for the time being in force.




Information under the third category does not fall within the scope of RTI


Act. Section 3 of RTI Act gives every citizen, the right to `information' held


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by or under the control of a public authority, which falls either under the first


or   second   category.   In   regard   to   the   information   falling   under   the   first


category, there is also a special responsibility upon public authorities to suo


moto  publish  and disseminate  such information  so that they will  be easily


and   readily   accessible   to   the   public   without   any   need   to   access   them   by


having   recourse   to   section   6   of   RTI   Act.   There   is   no   such   obligation   to


publish and disseminate the other information which falls under the second


category.




32.     The   information   falling   under   the   first   category,   enumerated   in


sections 4(1)(b) & (c) of RTI Act are extracted below :



        "4. Obligations of public authorities.-(1) Every public authority shall--


                (a)                                              xxxxxx


                (b)                                              publish   within   one

                hundred and twenty days from the enactment of this Act,--


                         (i) the particulars of its organisation, functions and duties;


                         (ii) the powers and duties of its officers and employees;


                         (iii)   the  procedure   followed   in   the   decision   making

                         process,   including   channels   of   supervision   and

                         accountability;


                         (iv) the norms set by it for the discharge of its functions;


                         (v) the rules, regulations, instructions, manuals and records,

                         held by it or under its control or used by its employees for

                         discharging its functions;


                         (vi) a statement of the categories of documents that are held

                         by it or under its control;


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         (vii)   the   particulars   of   any   arrangement   that   exists   for

         consultation with, or representation by, the members of the

         public   in   relation   to   the   formulation   of   its   policy   or

         implementation thereof;


         (viii)   a  statement   of the  boards,   councils,  committees   and

         other bodies consisting of two or more persons constituted

         as its part or for the purpose of its advice, and as to whether

         meetings   of   those   boards,   councils,   committees   and   other

         bodies   are   open   to   the   public,   or   the   minutes   of   such

         meetings are accessible for public;


         (ix) a directory of its officers and employees;


         (x)   the   monthly   remuneration   received   by   each   of   its

         officers   and   employees,   including   the   system   of

         compensation as provided in its regulations;


         (xi) the budget allocated to each of its agency, indicating

         the particulars of all plans, proposed expenditures and

         reports on disbursements made;


         (xii)   the   manner   of   execution   of   subsidy   programmes,

         including   the   amounts   allocated   and   the   details   of

         beneficiaries of such programmes;


         (xiii) particulars of recipients of concessions, permits or

         authorisations granted by it;


         (xiv)   details   in   respect   of  the   information,   available   to   or

         held by it, reduced in an electronic form;


         (xv)   the   particulars   of   facilities   available   to   citizens   for

         obtaining   information,   including   the   working   hours   of   a

         library or reading room, if maintained for public use;


         (xvi)   the   names,   designations   and   other   particulars   of   the

         Public Information Officers;


         (xvii)   such   other   information   as   may   be   prescribed;   and

         thereafter update these publications every year;


 (c)                                           publish   all   relevant   facts

while formulating  important policies or announcing the decisions

which affect public;


                                                            (emphasis supplied)


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Sub-sections   (2),   (3)   and   (4)   of   section   4   relating   to   dissemination   of


information enumerated in sections 4(1)(b) & (c) are extracted below:


        "(2)                       It   shall   be   a   constant   endeavour   of   every   public

        authority to take steps in accordance with the requirements of clause (b) of

        sub-section (1) to provide as much information suo motu to the public

        at   regular   intervals   through   various   means   of   communications,

        including internet, so that the public have minimum resort to the use

        of this Act to obtain information.

        (3)                        For   the  purposes   of   sub-section   (1),   every

        information   shall   be   disseminated   widely   and   in   such   form   and

        manner which is easily accessible to the public.

        (4)                        All   materials   shall   be   disseminated   taking   into

        consideration the cost effectiveness, local language and the most effective

        method of communication in that local area and the information should be

        easily   accessible,   to   the   extent   possible   in   electronic   format   with   the

        Central Public Information Officer or State Public Information Officer, as

        the case may be, available free or at such cost of the medium or the print

        cost price as may be prescribed.

        Explanation.--For the purposes of sub-sections (3) and (4), "disseminated"

        means   making   known   or   communicated   the   information   to   the   public

        through   notice   boards,   newspapers,   public   announcements,   media

        broadcasts, the internet or any other means, including inspection of offices

        of any public authority."

                                                                          (emphasis supplied)


33.     Some High Courts have held that section 8 of RTI Act is in the nature


of an exception to section 3 which empowers the citizens with the right to


information,   which   is   a   derivative   from   the   freedom   of   speech;   and   that


therefore section 8 should be construed strictly, literally and narrowly. This


may   not   be   the   correct   approach.   The   Act   seeks   to   bring   about   a   balance


between two conflicting interests, as harmony between them is essential for


preserving democracy. One is to bring about transparency and accountability


by providing  access to information under the control  of public authorities.


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The other is to ensure that the revelation of information, in actual practice,


does not conflict with other public interests which include efficient operation


of   the   governments,   optimum   use   of   limited   fiscal   resources   and


preservation of confidentiality of sensitive information. The preamble to the


Act specifically states that the object of the Act is to harmonise these two


conflicting   interests.   While   sections   3   and   4   seek   to   achieve   the   first


objective,   sections   8,   9,   10   and   11   seek   to   achieve   the   second   objective.


Therefore when section 8 exempts certain information from being disclosed,


it should not be considered to be a fetter on the right to information, but as


an equally important provision protecting other public interests essential for


the fulfilment and preservation of democratic ideals.




34.     When trying to ensure that the right to information does not conflict


with several other public interests (which includes efficient operations of the


governments,   preservation   of   confidentiality   of   sensitive   information,


optimum use of limited fiscal resources, etc.), it is difficult to visualise and


enumerate   all   types   of   information   which   require   to   be   exempted   from


disclosure in public interest. The legislature has however made an attempt to


do   so.   The   enumeration   of   exemptions   is   more   exhaustive   than   the


enumeration of exemptions attempted in the earlier Act that is section 8 of


Freedom   to   Information   Act,   2002.   The   Courts   and   Information


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Commissions enforcing the provisions of RTI Act have to adopt a purposive


construction,   involving   a   reasonable   and   balanced   approach   which


harmonises the two objects of the Act, while interpreting section 8 and the


other provisions of the Act.




35.     At   this   juncture,   it   is   necessary   to   clear   some   misconceptions   about


the   RTI   Act.   The   RTI   Act   provides   access   to   all   information  that   is


available and existing. This is clear from a combined reading of section 3


and the definitions of `information' and `right to information' under clauses


(f) and (j) of section 2 of the Act. If a public authority has any information in


the form of data or analysed data, or abstracts, or statistics, an applicant may


access such information, subject to the exemptions in section 8 of the Act.


But   where   the   information   sought   is   not   a   part   of   the   record   of   a   public


authority, and where such information is not required to be maintained under


any law or the rules or regulations of the public authority, the Act does not


cast an obligation upon the public authority, to collect or collate such non-


available information and then furnish it to an applicant. A public authority


is   also   not   required   to   furnish   information   which   require   drawing   of


inferences and/or making of assumptions. It is also not required to provide


`advice' or `opinion' to an applicant, nor required to obtain and furnish any


`opinion' or `advice' to an applicant. The reference to `opinion' or `advice'


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in   the  definition   of  `information'   in  section   2(f)   of  the  Act,   only   refers   to


such material available in the records of the public authority. Many public


authorities have, as a public relation exercise, provide advice, guidance and


opinion   to   the   citizens.   But   that   is   purely   voluntary   and   should   not   be


confused with any obligation under the RTI Act.




36.     Section 19(8) of RTI Act has entrusted the Central/State Information


Commissions,   with   the   power   to   require   any   public   authority   to   take   any


such steps as may be necessary to secure the compliance with the provisions


of the Act. Apart from the generality of the said power, clause (a) of section


19(8) refers to six specific powers, to implement the provision of the Act.


Sub-clause   (i)   empowers   a   Commission   to   require   the   public   authority   to


provide access to information if so requested in a particular `form' (that is


either  as   a  document,  micro   film,  compact  disc,   pendrive,   etc.).   This  is   to


secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a


Commission   to   require   the   public   authority   to   appoint   a   Central   Public


Information   Officer   or   State   Public   Information   Officer.   This   is   to   secure


compliance   with   section   5   of   the   Act.   Sub-clause   (iii)   empowers   the


Commission to require a public authority to publish certain information or


categories of information. This is to secure compliance with section 4(1) and


(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public


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authority   to   make   necessary   changes   to   its   practices   relating   to   the


maintenance, management and destruction of the records. This is to secure


compliance   with   clause   (a)   of   section   4(1)   of   the   Act.   Sub-clause   (v)


empowers   a   Commission   to   require   the   public   authority   to   increase   the


training   for   its   officials   on   the   right   to   information.   This   is   to   secure


compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a


Commission   to   require   the   public   authority   to   provide   annual   reports   in


regard to the compliance  with clause  (b) of section 4(1). This is to ensure


compliance with the provisions of clause (b) of section 4(1) of the Act. The


power under section 19(8) of the Act however does not extend to requiring a


public authority to take any steps which are not required or contemplated to


secure   compliance   with   the   provisions   of   the   Act   or   to   issue   directions


beyond the provisions of the Act. The power under section 19(8) of the Act


is intended to be used by the Commissions  to ensure compliance  with the


Act,   in   particular   ensure   that   every   public   authority   maintains   its   records


duly catalogued and indexed in the manner and in the form which facilitates


the   right   to   information   and   ensure   that   the   records   are   computerized,   as


required under clause (a) of section 4(1) of the Act; and to ensure that the


information enumerated in clauses (b) and (c) of sections 4(1) of the Act are


published and disseminated, and are periodically updated as provided in sub-


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sections (3) and (4) of section 4 of the Act. If the `information' enumerated


in   clause   (b)   of   section   4(1)   of   the   Act   are   effectively   disseminated   (by


publications in print and on websites and other effective means), apart from


providing   transparency   and   accountability,   citizens   will   be   able   to   access


relevant   information   and   avoid   unnecessary   applications   for   information


under the Act.




37.     The right to information is a cherished right. Information and right to


information are intended to be formidable tools in the hands of responsible


citizens to fight corruption and to bring in transparency and accountability.


The provisions of RTI Act should be enforced strictly and all efforts should


be   made   to   bring   to   light   the   necessary   information   under   clause   (b)   of


section   4(1)     of   the   Act   which   relates   to   securing   transparency   and


accountability   in   the   working   of   public   authorities   and   in   discouraging


corruption. But in regard to other information,(that is information other than


those   enumerated   in   section   4(1)(b)   and   (c)   of   the   Act),   equal   importance


and   emphasis   are   given   to   other   public   interests   (like   confidentiality   of


sensitive information, fidelity and fiduciary relationships, efficient operation


of governments, etc.). Indiscriminate and impractical demands or directions


under   RTI   Act   for   disclosure   of   all   and   sundry   information   (unrelated   to


transparency and accountability in the functioning of public authorities and


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eradication of corruption) would be counter-productive as it will adversely


affect the efficiency of the administration and result in the executive getting


bogged   down   with   the   non-productive   work   of   collecting   and   furnishing


information.   The   Act   should   not   be   allowed   to   be   misused   or   abused,   to


become   a   tool   to   obstruct   the   national   development   and   integration,   or   to


destroy the peace, tranquility and harmony among its citizens. Nor should it


be   converted   into   a   tool   of   oppression   or   intimidation   of   honest   officials


striving to do their duty. The nation does not want a scenario where 75% of


the   staff   of   public   authorities   spends   75%   of   their   time   in   collecting   and


furnishing   information   to   applicants   instead   of   discharging   their   regular


duties.   The   threat   of   penalties   under   the   RTI   Act   and   the   pressure   of   the


authorities   under   the   RTI   Act   should   not   lead   to   employees   of   a   public


authorities  prioritising  `information furnishing', at the cost  of their normal


and regular duties.





Conclusion




38.     In   view   of   the   foregoing,   the   order   of   the   High   Court   directing   the


examining   bodies   to   permit   examinees   to   have   inspection   of   their   answer


books is affirmed, subject to the clarifications regarding the scope of the RTI


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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.