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
Aditya Bandopadhyay & Ors. … Respondents
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
Leave granted. For convenience, we will impute to a contribution of a initial case.
2. The initial respondent seemed for a Secondary School Examination, 2008 conducted by a Central Board of Secondary Education (for brief `CBSE’ or a `appellant’). When he got a symbol piece he was unhappy with his marks. He suspicion that he had finished good in a hearing yet his answer-books were not scrupulously valued and that crude gratefulness had resulted in low marks. Therefore he finished an focus for review and re-evaluation of his answer-books. CBSE deserted a pronounced ask by minute antiquated 12.7.2008. The reasons for rejecting were:
(i) The information sought was exempted underneath Section 8(1)(e) of RTI Act given CBSE common fiduciary attribute with a evaluators and contend confidentiality of both demeanour and routine of evaluation.
(ii) The Examination Bye-laws of a Board supposing that no claimant shall explain or is entitled to re-evaluation of his answers or avowal or review of answer book(s) or other documents.
(iii) The incomparable open seductiveness does not aver a avowal of such information sought.
(iv) The Central Information Commission, by a sequence antiquated 23.4.2007 in seductiveness no. ICPB/A-3/CIC/2006 antiquated 10.2.2006 had ruled out such disclosure.”
3. Feeling depressed a initial respondent filed W.P. No.18189(W)/2008 before a Calcutta High Court and sought a following reliefs : (a) for a stipulation that a movement of CBSE in incompatible a sustenance of re- analysis of answer-sheets, in courtesy to a examinations reason by it was illegal, irrational and violative of a supplies of a Constitution of India; (b) for a instruction to CBSE to designate an eccentric investigator for re- evaluating his answer-books and emanate a uninformed outlines label on a basement of re- evaluation; (c) for a instruction to CBSE to allow his answer-books in courtesy to a 2008 Secondary School Examination so that they could be scrupulously reviewed and uninformed outlines label can be released with re-evaluation marks; (d) for quashing a communication of CBSE antiquated 12.7.2008 and for a instruction to allow a answer-books into probity for review by a initial respondent. The respondent contended that domain 8(1)(e) of Right to Information Act, 2005 (`RTI Act’ for short) relied on by CBSE was not germane and relied on a supplies of a RTI Act to explain inspection.
4. CBSE resisted a petition. It contended that as per a Bye-laws, re- analysis and review of answer-books were impermissible and what was slight was customarily corroboration of marks. They relied on a CBSE Examination Bye-law No.61, germane portions of that are extracted below:
“61. Verification of outlines performed by a Candidate in a subject
(i) A claimant who has seemed during an hearing conducted by a Board might ask to a endangered Regional Officer of a Board for corroboration of outlines in any sold subject. The corroboration will be singular to checking possibly all a answer’s have been evaluated and that there has been no mistake in a totalling of outlines for any doubt in that theme and that a outlines have been eliminated righteously on a pretension page of a answer book and to a endowment list and possibly a extra answer book(s) trustworthy with a answer book mentioned by a claimant are intact. No revaluation of a answer book or extra answer book(s) shall be done.
(ii) Such an focus contingency be finished by a claimant within 21 days from a date of a stipulation of outcome for Main Examination and 15 days for Compartment Examination.
(iii) All such applications contingency be accompanied by arrangement of cost as prescribed by a Board from time to time.
(iv) No claimant shall claim, or be entitled to, revaluation of his/her answers or avowal or review of a answer book(s) or other documents.
(vi) In no box a corroboration of outlines shall be finished in a appearance of a claimant or anyone else on his/her behalf, nor will a answer books be shown to him/her or his/her representative.
(vii) Verification of outlines performed by a claimant will be finished by a officials allocated by or with a capitulation of a Chairman.
(viii) The marks, on corroboration will be revised ceiling or downward, as per a tangible outlines performed by a claimant in his/her answer book. xxxx
62. Maintenance of Answer Books The answer books shall be confirmed for a duration of 3 months and shall afterward be approaching of in a demeanour as motionless by a Chairman from time to time.”
(emphasis supplied) CBSE submitted that 12 to 13 lakhs possibilities from about 9000 dependent schools opposite a republic seem in difficulty X and difficulty 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 a answer books customarily for a duration of 3 months after that they are approaching of. It was submitted that if possibilities were to be permitted to find re-evaluation of answer books or review thereof, it will emanate problem and chaos, subjecting a elaborate complement of examinations to check and disarray. It was staid that detached from difficulty X and difficulty XII examinations, CBSE also conducts several other examinations (including a All India Pre-Medical Test, All India Engineering Entrance Examination and Jawahar Navodaya Vidyalaya’s Selection Test). If CBSE was compulsory to re-evaluate a answer-books or extend review of answer-books or extend approved copies thereof, it would meddle with a effective and fit functioning, and will also need outrageous additional staff and infrastructure. It was submitted that a whole hearing complement and analysis by CBSE is finished in a systematic and systemic demeanour designed to guarantee and guarantee a high educational standards and during any turn pinnacle caring was taken to grasp a intent of excellence, gripping in perspective a interests of a students. CBSE referred to a following elaborate procession for analysis adopted by it :
“The hearing papers are set by a teachers with during slightest 20 years of training believe and proven integrity. Paper setters are routinely allocated from among academicians endorsed by afterwards Committee of courses of a Board. Every paper setter is asked to set some-more than one set of doubt papers that are moderated by a group of moderators who are allocated from a academicians of a University or from among a Senior Principals. The avocation of a mediation group is to guarantee exactness and coherence of opposite sets of doubt papers with a curriculum and to cruise a problem turn to support to a students of opposite schools in opposite categories. After assessing a papers from any indicate of view, a group of moderators gives a stipulation possibly a whole synopsis is lonesome by a set of doubt papers, possibly a placement of problem turn of all a sets is together and several other aspects to guarantee uniform standard. The Board also issues minute instructions for a superintendence of a moderators in sequence to guarantee uniform criteria for assessment.
The analysis complement on a whole is good orderly and fool-proof. All a possibilities are examined by doubt papers set by a same paper setters. Their answer books are noted with fictitious hurl numbers so as to disguise their identity. The work of funding of fictitious hurl series is carried out by a group operative underneath a Chief Secrecy Officer carrying full autonomy. The Chief Secrecy Officer and his group of assistants are academicians drawn from a Universities and other unconstrained educational bodies not connected with a Board. The Chief Secrecy Officer himself is customarily a chairman of a arrange of a University professor. No central of a Board during a Central or Regional turn is compared with him in opening of a assign reserved to him. The codes of fictitious hurl numbers and their sequences are generated by a Chief Secrecy Officer himself on a basement of mathematical law that randomize a genuine hurl numbers and are famous customarily to him and his team. This ensures finish remoteness about a marker of a answer book so many so, that even a Chairman, of a Board and a Controller of Examination of a Board do not have any information per a fictitious hurl numbers postulated by a Chief Secrecy Officer and their genuine reflection numbers.
At a analysis stage, a Board ensures finish firmness and unity by providing a imprinting intrigue that is unity germane to all a examiners in sequence to liberate a chances of subjectivity. These imprinting schemes are jointly prepared during a Headquarters of a Board in Delhi by a Subject Experts of all a regions. The categorical purpose of a imprinting intrigue is to contend unity in a analysis of a answer books.
The analysis of a answer books in all critical subjects including mathematics, scholarship subjects is finished in centralized “on a spot” analysis centers where a examiners get answer book in interrupted sequence orders. Also, a answer books are confused together as a outcome of that a examiners, contend in Bangalore might be imprinting a answer book of a claimant who had his hearing in Pondicherry, Goa, Andaman and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka itself yet he has no proceed of meaningful accurately that answer book he is examining. The answer books carrying been noted with fictitious hurl numbers give no thought to any investigator about a state or domain it belongs to. It can't give any thought about a candidate’s propagandize or centre of examination. The investigator can't have any desire to do any foster to a claimant given he is incompetent to decodify his hurl series or to know as to that school, place or state or domain he belongs to. The examiners check all a questions in a papers unconditionally underneath a organization of control investigator and endowment outlines to a underling collection away not collectively. They take full precautions and due courtesy is given while assessing an answer book to do probity to a candidate. Re- analysis is administratively unfit to be authorised in a Board where lakhs of students take hearing in mixed subjects. There are despotic instructions to a additional control examiners not to concede any trashy work in analysis and not to emanate some-more than 20-25 answer books for analysis to an investigator on a singular day. The examiners are practicing teachers who safeguard a seductiveness of a candidates. There is no belligerent to trust that they do unfair imprinting and repudiate a possibilities their due. It is loyal that in some cases totaling errors have been rescued during a theatre of review or corroboration of marks. In sequence to minimize such errors and to offer strengthen and to urge a system, from 1993 checking of totals and other aspects of a answers has been trebled in sequence to detect and liberate all sneaking errors.
The formula of all a possibilities are reviewed by a Results Committee functioning during a Head Quarters. The Regional Officers are not a series of this Committee. This Committee reviews a formula of all a regions and in box it decides to sequence a formula in perspective of a formula shown by a regions over a before years, it adopts a uniform routine for a possibilities of all a regions. No special routine is adopted for any region, unless there are some special reasons. This use of awarding standardised outlines in sequence to assuage a altogether formula is a use common to many of a Boards of Secondary Education. The accurate series of outlines awarded for a purpose of standardization in opposite subjects varies from year to year. The complement is intensely impersonalized and has no room for collusion infringement. It is in a word a systematic system.”
CBSE submitted that a procession developed and adopted by it ensures firmness and exactness in analysis of answer-books and finished a whole routine as foolproof as probable and therefore rejection of re-evaluation or review or extend of copies can't be deliberate to be rejection of acceptable play or irrational limitation on a rights of a students.
5. A Division Bench of a High Court listened and approaching of a pronounced command petition along with a connected command petitions (relied by West Bengal Board of Secondary Education and others) by a common visualisation antiquated 5.2.2009. The High Court reason that a evaluated answer-books of an examinee essay a open hearing conducted by orthodox bodies like CBSE or any University or Board of Secondary Education, being a `document, publishing record, and opinion’ fell within a clarification of “information” as tangible in domain 2(f) of a RTI Act. It reason that a supplies of a RTI Act should be interpreted in a demeanour that would lead towards distribution of information rather than self-denial a same; and in perspective of a right to information, a examining bodies were firm to yield review of evaluated answer books to a examinees. Consequently it destined CBSE to extend review of a answer books to a examinees who sought information. The High Court however deserted a ask finished by a examinees for re-evaluation of a answer-books, as that was not a use that was permitted underneath RTI Act. RTI Act customarily supposing a right to entrance information, yet not for any element reliefs. Feeling depressed by a instruction to extend inspection, CBSE has filed this seductiveness by special leave.
6. Before us a CBSE contended that a High Court erred in (i) directing CBSE to assent review of a evaluated answer books, as that would volume to requiring CBSE to pass a Examination Bye-law 61(4), that supposing that no claimant shall explain or be entitled to re-evaluation of answer books or disclosure/inspection of answer books; (ii) holding that Bye-law 61(4) was not contracting on a examinees, in perspective of a major outcome of a supplies of a RTI Act, even yet a outcome of that bye-law had not been challenged; (iii) not following a decisions of this probity 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. we Dass [2007 (8) SCC 242]; and (iv) holding that a examinee had a right to check his answer book underneath domain 3 of a RTI Act and a examining bodies like CBSE were not exempted from avowal of information underneath domain 8(1)(e) of a RTI Act. The appellants contended that they were holding a “information” (in this case, a evaluated answer books) in a fiduciary attribute and therefore exempted underneath domain 8(1)(e) of a RTI Act.
7. The examinees and a Central Information Commission contended that a intent of theRTI Act is to guarantee limit avowal of information and smallest exemptions from disclosure; that an examining physique does not reason a evaluated answer books, in any fiduciary attribute possibly with a tyro or a examiner; and that a information sought by any examinee by proceed of review of his answer books, will not tumble underneath any of a exempted categories of information enumerated in domain 8 of a RTI Act. It was submitted that an examining physique being a open government holding a `information’, that is, a evaluated answer-books, and a review of answer-books sought by a examinee being use of `right to information’ as tangible underneath a Act, a examinee as a citizen has a right to check a answer-books and take approved copies thereof. It was also submitted that carrying courtesy to domain 22 of a RTI Act, a supplies of a pronounced Act will have outcome notwithstanding anything unsuitable in any law and will overcome over any rule, law or bye law of a examining physique exclusive or prohibiting review of answer books.
8. On a contentions urged, a following questions arise for a caring :
(i) Whether an examinee’s right to information underneath a RTI Act includes a right to check his evaluated answer books in a open hearing or holding approved copies thereof?
(ii) Whether a decisions of this probity in Maharashtra State Board of Secondary Education [1984 (4) SCC 27] and other cases referred to above, in any proceed impact or meddle with a right of an examinee seeking review of his answer books or seeking approved copies thereof?
(iii) Whether an examining physique binds a evaluated answer books “in a fiduciary relationship” and hence has no requirement to give review of a evaluated answer books underneath domain 8 (1)(e) of RTI Act?
(iv) If a examinee is entitled to review of a evaluated answer books or find approved copies thereof, possibly such right is theme to any limitations, conditions or safeguards?
Relevant Legal Provisions
9. To cruise these questions, it is compulsory to impute to a matter of objects and reasons, a preliminary and a germane supplies of a RTI Act. RTI Act was enacted in sequence to guarantee smoother, incomparable and some-more effective entrance to information and yield an effective horizon for effectuating a right of information famous underneath essay 19 of a Constitution. The preliminary to a Act declares a intent sought to be achieved by a RTI Act thus:
“An Act to yield for sourroundings out a unsentimental regime of right to information for adults to secure entrance to information underneath a control of open authorities, in sequence to foster clarity and burden in a operative of any open authority, a structure of a Central Information Commission and State Information Commissions and for matters connected still or immaterial thereto. Whereas a Constitution of India has determined approved Republic; And given democracy requires an supportive citizenry and clarity of information that are critical to a functioning and also to enclose crime and to reason Governments and their instrumentalities accountable to a governed;
And given explanation of information in tangible use is approaching to dispute with other open interests including fit operations of a Governments, best use of singular mercantile resources and a refuge of confidentiality of supportive information; And given it is compulsory to harmonize these opposing interests while preserving a paramountcy of a approved ideal.”
Chapter II of a Act containing sections 3 to 11 deals with right to information and obligations of open authorities. Section 3 provides for right to information and reads thus: “Subject to a supplies of this Act, all adults shall have a right to information.” This domain creates it transparent that a RTI Act gives a right to a citizen to customarily entrance information, yet not find any element use formed on such information. Section 4 deals with obligations of open authorities to contend a annals in a demeanour supposing and tell and disseminate a information in a demeanour provided. Section 6 deals with requests for receiving information. It provides that applicant creation a ask for information shall not be compulsory to give any reason for requesting a information or any personal sum solely those that might be compulsory for contacting him. Section 8 deals with extend from avowal of information and is extracted in a entirety:
“8. Exemption from avowal of information — (1) Notwithstanding anything contained in this Act, there shall be no requirement to give any citizen,-
(a) information, avowal of that would prejudicially impact a organisation and firmness of India, a security, strategic, systematic or mercantile interests of a State, propinquity with unfamiliar State or lead to incitement of an offence;
(b) information that has been privately banned to be published by any probity of law or judiciary or a avowal of that might consecrate disregard of court;
(c) information, a avowal of that would means a crack of payoff of Parliament or a State Legislature;
(d) information including blurb confidence, trade secrets or egghead property, a avowal of that would mistreat a rival position of a third party, unless a fit government is confident that incomparable open seductiveness warrants a avowal of such information;
(e) information permitted to a chairman in his fiduciary relationship, unless a fit government is confident that a incomparable open seductiveness warrants a avowal of such information;
(f) information perceived in certainty from unfamiliar Government;
(g) information, a avowal of that would discredit a life or earthy reserve of any chairman or brand a source of information or assistance given in certainty for law coercion or certainty purposes;
(h) information that would block a routine of review or confinement or assign of offenders;
(i) cupboard papers including annals of deliberations of a Council of Ministers, Secretaries and other officers: Provided that a decisions of Council of Ministers, a reasons thereof, and a element on a basement of that a decisions were taken shall be finished open after a welfare has been taken, and a matter is complete, or over:
Provided offer that those matters that come underneath a exemptions specified in this domain shall not be disclosed;
(j) information that relates to personal information a avowal of that has no attribute to any open activity or interest, or that would means uncalled-for advance of a remoteness of a sold unless a Central Public Information Officer or a State Public Information Officer or a appellate authority, as a box might be, is confident that a incomparable open seductiveness justifies a avowal of such information:
Provided that a information that can't be denied to a Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in a Official Secrets Act, 1923 (19 of 1923) nor any of a exemptions slight in suitability with sub-section (1), a open government might concede entrance to information, if open seductiveness in avowal outweighs a mistreat to a stable interests.
(3) Subject to a supplies of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, eventuality or matter that has taken place, occurred or happened twenty years before a date on that any ask is finished underneath secton 6 shall be supposing to any chairman creation a ask underneath that section:
Provided that where any doubt arises as to a date from that a pronounced duration of twenty years has to be computed, a welfare of a Central Government shall be final, theme to a common appeals supposing for in this Act.”
(emphasis supplied) Section 9 provides that yet change to a supplies of domain 8, a ask for information might be deserted if such a ask for providing entrance would engage an transgression of copyright. Section 10 deals with severability of exempted information and sub-section (1) thereof is extracted below:
“(1) Where a ask for entrance to information is deserted on a belligerent that it is in propinquity to information that is giveaway from disclosure, then, notwithstanding anything contained in this Act, entrance might be supposing to that partial of a record that does not enclose any information that is giveaway from avowal underneath this Act and that can pretty be severed from any partial that contains giveaway information.”
Section 11 deals with third celebration information and sub-section (1) thereof is extracted below:
“(1) Where a Central Public Information Officer or a State Public Information Officer, as a box might be, intends to divulge any information or record, or partial thereof on a ask finished underneath this Act, that relates to or has been postulated by a third celebration and has been treated as devoted by that third party, a Central Public Information Officer or State Public Information Officer, as a box might be, shall, within 5 days from a receipt of a request, give a total notice to such third celebration of a ask and of a fact that a Central Public Information Officer or State Public Information Officer, as a box might be, intends to divulge a information or record, or partial thereof, and entice a third celebration to make a acquiescence in essay or orally, per possibly a information should be disclosed, and such acquiescence of a third celebration shall be kept in perspective while holding a welfare about avowal of information:
Provided that solely in a box of trade or blurb secrets stable by law, avowal might be authorised if a open seductiveness in avowal outweighs in significance any probable mistreat or damage to a interests of such third party.”
The definitions of information, open authority, record and right to information in clauses (f), (h), (i) and (j) of domain 2 of a RTI Act are extracted below:
“(f) “information” means any element in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, information element reason in any electronic form and information relating to any private physique that can be accessed by a open government underneath any other law for a time being in force;
(h) “public authority” means any government or physique or establishment of self- organisation determined or constituted-
(a) by or underneath a Constitution;
(b) by any other law finished by Parliament;
(c) by any other law finished by State Legislature;
(d) by presentation released or sequence finished by a suitable Government, and includes any-
(i) physique owned, tranquil or roughly financed;
(ii) non-Government organization roughly financed, directly or indirectly by supports supposing by a suitable Government;
(i) “record” includes-
(a) any document, publishing and file;
(b) any microfilm, microfiche and mock-up duplicate of a document;
(c) any facsimile of picture or images embodied in such reproduce (whether lengthened or not); and
(d) any other element constructed by a mechanism or any other device;
(j) “right to information” means a right to information permitted underneath this Act that is reason by or underneath a control of any open government and includes a right to-
(i) review of work, documents, records;
(ii) holding notes, extracts or approved copies of papers or records;
(iii) holding approved samples of material;
(iv) receiving information in a form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or by printouts where such information is stored in a mechanism or in any other device;
Section 22 provides for a Act to have major outcome and is extracted below:
“The supplies of this Act shall have outcome notwithstanding anything unsuitable still contained in a Official Secrets Act, 1923 (19 of 1923), and any other law for a time being in force or in any instrument carrying outcome by trait of any law other than this Act.”
10. It will also be useful to impute to a few decisions of this Court that deliberate a significance and range of a right to information. In State of Uttar Pradesh v. Raj Narain – (1975) 4 SCC 428, this Court observed:
“In a organisation of shortcoming like ours, where all a agents of a open contingency be obliged for their conduct, there can yet few secrets. The people of this republic have a right to know any open act, everything, that is finished in a open way, by their open functionaries. They are entitled to know a sum of any open transaction in all a bearing. The right to know, that is successive from a judgment of leisure of speech, yet not absolute, is a cause that should make one wary, when remoteness is claimed for exchange that can, during any rate, have no outcome on open security.”
(emphasis supplied) In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:
“In complicated inherent democracies, it is self-evident that adults have a right to know about a affairs of a Government which, carrying been inaugurated by them, seeks to delineate sound policies of governance directed during their welfare. However, like all other rights, even this right has famous limitations; it is, by no means, absolute. ………………Implicit in this avowal is a tender that in transaction that have critical repercussions on open security, remoteness can legitimately be claimed given it would afterwards be in a open seductiveness that such matters are not publicly disclosed or disseminated.
To guarantee a continued appearance of a people in a approved process, they contingency be kept supportive of a critical decisions taken by a Government and a basement thereof. Democracy, therefore, expects honesty and honesty is a consequent of a giveaway society. Sunlight is a best disinfectant. But it is equally critical to be alive to a dangers that distortion ahead. It is critical to realize that undue renouned vigour brought to bear on decision-makers is Government can have frightening side-effects. If any movement taken by a domestic or executive functionary is remade into a open debate and finished theme to an enquiry to ease renouned sentiments, it will positively have a chilling outcome on a autonomy of a decision-maker who might find it safer not to take any decision. It will dull a whole complement and move it to a harsh halt. So we have dual opposing situations roughly puzzling and we cruise a answer is to contend a excellent change that would offer open interest.”
In People’s Union for Civil Liberties v. Union of India – (2004) 2 SCC 476, this Court reason that right of information is a facet of a leisure of “speech and expression” as contained in Article 19(1)(a) of a Constitution of India and such a right is theme to any reasonable limitation in a seductiveness of a certainty of a state and theme to exemptions and exceptions.
Re : Question (i)
11. The clarification of `information’ in domain 2(f) of a RTI Act refers to any element in any form that includes records, documents, opinions, papers among several other enumerated items. The tenure `record’ is tangible in domain 2(i) of a pronounced Act as including any document, publishing or record among others. When a claimant participates in an hearing and writes his answers in an answer-book and submits it to a examining physique for analysis and stipulation of a result, a answer-book is a ask or record. When a answer-book is evaluated by an investigator allocated by a examining body, a evaluated answer-book becomes a record containing a `opinion’ of a examiner. Therefore a evaluated answer-book is also an `information’ underneath a RTI Act.
12. Section 3 of RTI Act provides that theme to a supplies of this Act all adults shall have a right to information. The tenure `right to information’ is tangible in domain 2(j) as a right to information permitted underneath a Act that is reason by or underneath a control of any open authority. Having courtesy to domain 3, a adults have a right to entrance to all information reason by or underneath a control of any open government solely those released or exempted underneath a Act. The intent of a Act is to commission a adults to quarrel opposite crime and reason a Government and their instrumentalities accountable to a citizens, by providing them entrance to information per functioning of any open authority. Certain safeguards have been built into a Act so that a explanation of information will not dispute with other open interests that embody fit operation of a governments, best use of singular mercantile resources and refuge of devoted and supportive information. The RTI Act provides entrance to information reason by or underneath a control of open authorities and not in courtesy to information reason by any private person. The Actprovides a following exclusions by proceed of exemptions and exceptions (under sections 8, 9 and 24) in courtesy to information reason by open authorities:
(i) Exclusion of a Act in entirety underneath domain 24 to comprehension and certainty organizations specified in a Second Schedule even yet they might be “public authorities”, (except in courtesy to information with anxiety to allegations of crime and tellurian rights violations).
(ii) Exemption of a several categories of information enumerated in domain 8(1) of a Act that no open government is underneath an requirement to give to any citizen, notwithstanding anything contained in a Act [however, in courtesy to a information exempted underneath clauses (d) and (e), a fit authority, and in courtesy to a information released underneath proviso (j), Central Public Information Officer/State Public Information Officer/the Appellate Authority, might proceed avowal of information, if incomparable open seductiveness warrants or justifies a disclosure].
(iii) If any ask for providing entrance to information involves an transgression of a copyright subsisting in a chairman other than a State, a Central/State Public Information Officer might reject a ask underneath domain 9 of RTI Act.
Having courtesy to a intrigue of a RTI Act, a right of a adults to entrance any information reason or underneath a control of any open authority, should be review in assent with a exclusions/exemptions in a Act.
13. The examining bodies (Universities, Examination Boards, CBSC etc.) are conjunction certainty nor comprehension organisations and therefore a extend underneath domain 24 will not ask to them. The avowal of information with anxiety to answer-books does not also engage transgression of any copyright and therefore domain 9 will not apply. Resultantly, unless a examining bodies are means to denote that a evaluated answer-books tumble underneath any of a categories of exempted `information’ enumerated in clauses (a) to (j) of sub-section (1) domain 8, they will be firm to yield entrance to a information and any applicant can possibly check a document/record, take notes, extracts or obtain approved copies thereof.
14. The examining bodies contend that a evaluated answer-books are exempted from avowal underneath domain 8(1)(e) of a RTI Act, as they are `information’ reason in a fiduciary relationship. They sincerely conceded that evaluated answer-books will not tumble underneath any other exemptions in sub- domain (1) of domain 8. Every examinee will have a right to entrance his evaluated answer-books, by possibly inspecting them or take approved copies thereof, unless a evaluated answer-books are found to be exempted underneath domain 8(1)(e) of a RTI Act.
Re : Question (ii)
15. In Maharashtra State Board, this Court was deliberation possibly rejection of re-evaluation of answer-books or rejection of avowal by proceed of review of answer books, to an examinee, underneath Rule 104(1) and (3) of a Maharashtra Secondary and Higher Secondary Board Rules, 1977 was violative of beliefs of healthy probity and violative of Articles 14 and 19 of a Constitution of India. Rule 104(1) supposing that no re-evaluation of a answer books shall be finished and on an focus of any claimant corroboration will be singular to checking possibly all a answers have been examined and that there is no mistake in a totalling of outlines for any doubt in that theme and transferring outlines righteously on a initial cover page of a answer book. Rule 104(3) supposing that no claimant shall explain or be entitled to re-evaluation of his answer-books or review of answer- books as they were treated as confidential. This Court while support a outcome of Rule 104(3) reason as underneath :
“…. a “process of analysis of answer papers or of successive corroboration of marks” underneath Clause (3) of Regulation 104 does not attract a beliefs of healthy probity given no welfare creation routine that brings about inauspicious polite consequences to a examinees in involved. The beliefs of healthy probity can't be extended over reasonable and receptive boundary and can't be carried to such absurd lengths as to make it compulsory that possibilities who have taken a open hearing should be authorised to attend in a routine of analysis of their performances or to establish a exactness of a analysis finished by a examiners by themselves conducting an review of a answer-books and last possibly there has been a scold and acceptable gratefulness of a answers by a examiners.”
So prolonged as a physique entrusted with a assign of framing a manners or regulations acts within a range of a government conferred on it, in a clarity that a manners or regulations finished by it have a receptive sequence with a intent and purpose of a statute, a probity should not courtesy itself with a believe or efficaciousness of such manners or regulations…. The Legislature and a nominee are a solitary repositories of a energy to confirm what routine should be followed in propinquity to matters lonesome by a Act … and there is no range for division by a Court unless a sold sustenance impugned before it can be pronounced to humour from any authorised infirmity, in a clarity of a being unconditionally over a range of a law creation energy or a being unsuitable with any of a supplies of a primogenitor dramatization or in defilement of any of a stipulations imposed by a Constitution.
It was ideally within a cunning of a Board, rather it was a plain duty, to ask a mind and confirm as a matter of routine relating to a control of a hearing as to possibly avowal and review of a answer books should be authorised to a candidates, possibly and to what border corroboration of a outcome should be permitted after a formula have already been announced and possibly any right to explain revaluation of a answer books should be famous or supposing for. All these are positively matters that have an insinuate sequence with a objects and functions of a dramatization and are, therefore, with in a ambit of a ubiquitous energy to make regulations….”
This Court reason that Regulation 104(3) can't be reason to be irrational merely given in certain wandering instances, errors or irregularities had left neglected even after corroboration of a endangered answer books according to a existent procession and it was customarily after offer review finished possibly on orders of a probity or in a arise of contentions lifted in a petitions filed before a court, that such errors or irregularities were eventually discovered. This probity reiterated a perspective that “the exam of discretion is not practical in opening yet in a context of life’s realities” and resolved that many and practically, providing all a possibilities review of their answer books or re-evaluation of a answer books in a appearance of a possibilities would not be feasible. Dealing with a row that any student is entitled to acceptable play in hearing and accept outlines relating his performance, this probity reason :
“What constitutes acceptable play depends on a contribution and resources relating to any sold given situation. If it is found that any probable prevision has been taken and all compulsory safeguards supposing to guarantee that a answer books consummate of supplements are kept in stable control so as to liberate a risk of their being tampered with and that a analysis is finished by a examiners requesting uniform standards with checks and crosschecks during opposite stages and that measures for display of malpractice, etc. have also been effectively adopted, in such cases it will not be scold on a partial of a Courts to strike down, a sustenance prohibiting revaluation on a belligerent that it violates a manners of acceptable play. It appears that a procession developed by a Board for ensuring firmness and exactness in analysis of a answer books has finished a complement as dope explanation as can be probable and is unconditionally satisfactory. The Board is a unequivocally obliged body. The possibilities have taken a hearing with full recognition of a supplies contained in a Regulations and in a stipulation finished in a form of focus for acknowledgment to a hearing they have gravely staid that they entirely establish to reside by a regulations released by a Board. In a circumstances, when we find that all safeguards opposite errors and malpractices have been supposing for, there can't be pronounced to be any rejection of acceptable play to a examinees by reason of a crack opposite seeking for revaluation…. ”
This Court resolved that if review and corroboration in a appearance of a candidates, or revaluation, have to be authorised as of right, it might lead to sum and unfixed uncertainty, quite in courtesy to a family ranking etc. of a candidate, besides heading to finish problem on comment of a concern of a work and time endangered in a process. This probity resolved :
“… a Court should be intensely demure to surrogate a possess views as to what is wise, advantageous and scold in propinquity to educational matters in welfare to those formulated by veteran group possessing technical imagination and abounding believe of tangible day-to-day operative of educational institutions and a departments determining them. It will be unconditionally wrong for a probity to make a academic and quite maudlin proceed to a problems of this nature, private from a tangible realities and weed base problems endangered in a operative of a complement and forgetting of a consequences that would emanate if a quite maudlin perspective as opposite to a useful one were to be propounded.”
16. The above beliefs laid down in Maharashtra State Board have been followed and reiterated in several decisions of this Court, some of that are referred to in para (6) above. But a beliefs laid down in decisions such as Maharashtra State Board count on a supplies of a manners and regulations of a examining body. If a manners and regulations of a examining physique yield for re-evaluation, review or avowal of a answer-books, afterwards nothing of a beliefs in Maharashtra State Board or other decisions following it, will ask or be relevant. There has been a light change in trend with several examining bodies needing review and avowal of a answer-books.
17. It is so now good staid that a sustenance exclusive review or avowal of a answer-books or re-evaluation of a answer-books and restricting a pill of a possibilities customarily to re-totalling is current and contracting on a examinee. In a box of CBSE, a supplies exclusive re- analysis and review contained in Bye-law No.61, are same to Rule 104 deliberate in Maharashtra State Board. As a outcome if an hearing is governed customarily by a manners and regulations of a examining physique that bar inspection, avowal or re-evaluation, a examinee will be entitled customarily for re-totalling by checking possibly all a answers have been evaluated and offer checking possibly there is no mistake in totaling of outlines for any doubt and outlines have been eliminated righteously to a pretension (abstract) page. The position might however be different, if there is a higher orthodox right entitling a examinee, as a citizen to find entrance to a answer books, as information.
18. In these cases, a High Court has righteously denied a ask for re- analysis of answer-books sought by a possibilities in perspective of a bar contained in a manners and regulations of a examining bodies. It is also not a use permitted underneath a RTI Act. Therefore a doubt possibly re- analysis should be permitted or not, does not arise for a consideration. What arises for caring is a doubt possibly a examinee is entitled to check his evaluated answer-books or take approved copies thereof. This right is claimed by a students, not with anxiety to a manners or bye-laws of examining bodies, yet underneath a RTI Act that enables them and entitles them to have entrance to a answer-books as `information’ and check them and take approved copies thereof. Section 22 of RTI Act provides that a supplies of a pronounced Act will have effect, notwithstanding anything unsuitable still contained in any other law for a time being in force. Therefore a supplies of a RTI Actwill overcome over a supplies of a bye-laws/rules of a examining bodies in courtesy to examinations. As a result, unless a examining physique is means to denote that a answer-books tumble underneath a exempted difficulty of information described in proviso (e) of domain 8(1)of RTI Act, a examining physique will be firm to yield entrance to an examinee to check and take copies of his evaluated answer-books, even if such review or holding copies is barred underneath a rules/bye-laws of a examining physique ruling a examinations. Therefore, a welfare of this Court in Maharashtra State Board (supra) and a successive decisions following a same, will not impact or meddle with a right of a examinee seeking review of answer-books or holding approved copies thereof.
Re : Question (iii)
19. Section 8(1) enumerates a categories of information that are exempted from avowal underneath a supplies of a RTI Act. The examining bodies rest on proviso (e) of domain 8(1) that provides that there shall be no requirement on any open government to give any citizen, information permitted to it in a fiduciary relationship. This extend is theme to a condition that if a fit government (as tangible in domain 2(e) of RTI Act) is confident that a incomparable open seductiveness warrants a avowal of such information, a information will have to be disclosed. Therefore a doubt is possibly a examining physique binds a evaluated answer-books in a fiduciary relationship.
20. The tenure `fiduciary’ and `fiduciary relationship’ impute to opposite capacities and relationship, involving a common avocation or obligation. 20.1) Black’s Law Dictionary (7th Edition, Page 640) defines `fiduciary relationship’ thus:
“A attribute in that one chairman is underneath a avocation to act for a advantage of a other on matters within a range of a relationship. Fiduciary family – such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client – need a top avocation of care. Fiduciary family customarily arise in one of 4 situations : (1) when one chairman places trust in a true firmness of another, who as a outcome gains supremacy or change over a first, (2) when one chairman assumes control and shortcoming over another, (3) when one chairman has a avocation to act for or give recommendation to another on matters descending within a range of a relationship, or (4) when there is a specific attribute that has traditionally been famous as involving fiduciary duties, as with a counsel and a patron or a broker and a customer.”
20.2) The American Restatements (Trusts and Agency) conclude `fiduciary’ as one whose goal is to act for a advantage of another as to matters germane to a propinquity between them. The Corpus Juris Secundum (Vol. 36A page
381) attempts to conclude fiduciary so :
“A ubiquitous clarification of a word that is amply extensive to welcome all cases can't good be given. The tenure is successive from a civil, or Roman, law. It connotes a thought of trust or confidence, contemplates good faith, rather than authorised obligation, as a basement of a transaction, refers to a integrity, a fidelity, of a celebration trusted, rather than his credit or ability, and has been reason to ask to all persons who occupy a position of rare certainty toward others, and to embody those spontaneous family that exist whenever one celebration trusts and relies on another, as good as technical fiduciary relations. The word `fiduciary,’ as a noun, means one who binds a thing in trust for another, a trustee, a chairman holding a impression of a trustee, or a impression equivalent to that of a trustee, with honour to a trust and certainty endangered in it and a tasteful good faith and integrity that it requires; a chairman carrying a duty, total by his undertaking, to act essentially for another’s advantage in matters connected with such undertaking. Also some-more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator, or any chairman behaving in any fiduciary ability for any person, trust, or estate. Some examples of what, in sold connections, a tenure has been reason to embody and not to embody are set out in a note.”
20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines `fiducial relation’ so :
“There is a technical eminence between a `fiducial relation‘ that is some-more righteously germane to authorised family between parties, such as defender and ward, executive and heirs, and other identical relationships, and `confidential relation’ that includes a authorised relationships, and also any other attribute wherein certainty is righteously reposed and is exercised.
Generally, a tenure `fiduciary’ relates to any chairman who occupies a position of rare certainty towards another. It refers to firmness and fidelity. It contemplates acceptable traffic and good faith, rather than authorised obligation, as a basement of a transaction. The tenure includes those spontaneous family that exist whenever one celebration trusts and relies on another, as good as technical fiduciary relations.”
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] a tenure fiduciary was tangible so :
“A fiduciary is someone who has undertaken to act for and on seductiveness of another in a sold matter in resources that give arise to a attribute of trust and confidence. The specifying requirement of a fiduciary is a requirement of loyalty….. A fiduciary contingency act in good faith; he contingency not make a distinction out of his trust; he contingency not place himself in a position where his avocation and his seductiveness might conflict; he might not act for his possess advantage or a advantage of a third chairman yet a supportive agree of his principal.”
20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] a California Court of Appeals tangible fiduciary attribute as underneath :
“any attribute existent between a parties to a transaction where one of a parties is avocation firm to act with pinnacle good faith for a advantage of a other party. Such a attribute customarily arises where certainty is reposed by one chairman in a firmness of another, and in such a propinquity a celebration in whom a certainty is reposed, if he willingly accepts or assumes to accept a confidence, can take no advantage from his acts relating to a interests of a other celebration yet a latter’s believe and consent.”
21. The tenure `fiduciary’ refers to a chairman carrying a avocation to act for a advantage of another, display good faith and condour, where such other chairman reposes trust and special certainty in a chairman overdue or discharging a duty. The tenure `fiduciary relationship’ is used to report a conditions or transaction where one chairman (beneficiary) places finish certainty in another chairman (fiduciary) in courtesy to his affairs, business or transaction/s. The tenure also refers to a chairman who binds a thing in trust for another (beneficiary). The fiduciary is approaching to act in certainty and for a advantage and advantage of a beneficiary, and use good faith and firmness in traffic with a customer or a things belonging to a beneficiary. If a customer has entrusted anything to a fiduciary, to reason a thing in trust or to govern certain acts in courtesy to or with anxiety to a entrusted thing, a fiduciary has to act in certainty and approaching not to divulge a thing or information to any third party. There are also certain family where both a parties have to act in a fiduciary ability treating a other as a beneficiary. Examples of these are : a partner vis-`-vis another partner and an employer vis-`-vis employee. An worker who comes into possession of business or trade secrets or devoted information relating to a employer in a march of his employment, is approaching to act as a fiduciary and can't divulge it to others. Similarly, if on a ask of a employer or central higher or a control of a department, an worker furnishes his personal sum and information, to be defended in confidence, a employer, a central higher or departmental control is approaching to reason such personal information in certainty as a fiduciary, to be finished use of or disclosed customarily if a employee’s control or acts are found to be unjust to a employer.
22. In a philosophical and unequivocally far-reaching sense, examining bodies can be pronounced to act in a fiduciary capacity, with anxiety to students who attend in an examination, as a organisation does while ruling a adults or as a benefaction era does with anxiety to a destiny era while preserving a environment. But a difference `information permitted to a chairman in his fiduciary relationship’ are used in domain 8(1)(e) of RTI Act in a normal and good famous sense, that is to impute to persons who act in a fiduciary capacity, with anxiety to a specific customer or beneficiaries who are to be approaching to be stable or benefited by a actions of a fiduciary – a keeper with anxiety to a customer of a trust, a defender with anxiety to a minor/physically/infirm/mentally challenged, a primogenitor with anxiety to a child, a counsel or a franchised accountant with anxiety to a client, a alloy or helper with anxiety to a patient, an representative with anxiety to a principal, a partner with anxiety to another partner, a executive of a association with anxiety to a share-holder, an executor with anxiety to a legatee, a receiver with anxiety to a parties to a lis, an employer with anxiety to a devoted information relating to a employee, and an worker with anxiety to business dealings/transaction of a employer. We do not find that kind of fiduciary attribute between a examining physique and a examinee, with anxiety to a evaluated answer-books, that come into a control of a examining body.
23. The avocation of examining bodies is to theme a possibilities who have finished a march of investigate or a duration of training in suitability with a curricula, to a routine of verification/examination/testing of their knowledge, ability or skill, or to discern possibly they can be pronounced to have successfully finished or upheld a march of investigate or training. Other specialized Examining Bodies might simply theme possibilities to a routine of corroboration by an examination, to find out possibly such chairman is suitable for a sold post, pursuit or assignment. An examining body, if it is a open government entrusted with open functions, is compulsory to act fairly, reasonably, regularly and consistently for open good and in open interest. This Court has explained a purpose of an examining physique in courtesy to a routine of holding hearing in a context of examining possibly it amounts to `service’ to a consumer, in Bihar School Examination Board vs. Suresh Prasad Sinha – (2009) 8 SCC 483, in a following manner:
“The routine of holding examinations, evaluating answer scripts, dogmatic formula and arising certificates are opposite stages of a singular orthodox non-commercial function. It is not probable to sequence this avocation as partly orthodox and partly administrative. When a Examination Board conducts an hearing in liberate of a orthodox function, it does not offer a “services” to any candidate. Nor does a tyro who participates in a hearing conducted by a Board, hires or avails of any use from a Board for a consideration. On a other hand, a claimant who participates in a hearing conducted by a Board, is a chairman who has undergone a march of investigate and who requests a Board to exam him as to possibly he has imbibed sufficient believe to be fit to be announced as carrying successfully finished a pronounced march of education; and if so, establish his position or arrange or cunning vis-a- vis other examinees. The routine is not therefore availment of a use by a student, yet appearance in a ubiquitous hearing conducted by a Board to discern possibly he is authorised and fit to be deliberate as carrying successfully finished a delegate preparation course. The hearing cost paid by a tyro is not a caring for availment of any service, yet a assign paid for a payoff of appearance in a examination………. The fact that in a march of control of a examination, or analysis of answer-scripts, or furnishing of mark-books or certificates, there might be some negligence, repudiation or deficiency, does not modify a Board into a service-provider for a consideration, nor modify a examinee into a consumer ………”
It can't therefore be pronounced that a examining physique is in a fiduciary attribute possibly with anxiety to a examinee who participates in a hearing and whose answer-books are evaluated by a examining body.
24. We might subsequent cruise possibly an examining physique would be entitled to explain extend underneath domain 8(1)(e) of a RTI Act, even presumption that it is in a fiduciary attribute with a examinee. That domain provides that notwithstanding anything contained in a Act, there shall be no requirement to give any citizen information permitted to a chairman in his fiduciary relationship. This would customarily meant that even if a attribute is fiduciary, a extend would work in courtesy to giving entrance to a information reason in fiduciary relationship, to third parties. There is no doubt of a fiduciary self-denial information relating to a beneficiary, from a customer himself. One of a duties of a fiduciary is to make consummate avowal of all germane contribution of all exchange between them to a beneficiary, in a fiduciary relationship. By that logic, a examining body, if it is in a fiduciary attribute with an examinee, will be probable to make a full avowal of a evaluated answer-books to a examinee and during a same time, owe a avocation to a examinee not to divulge a answer-books to anyone else. If A entrusts a ask or an essay to B to be processed, on execution of processing, B is not approaching to give a ask or essay to anyone else yet is firm to give a same to A who entrusted a ask or essay to B for processing. Therefore, if a attribute of fiduciary and customer is insincere between a examining physique and a examinee with anxiety to a answer-book, domain 8(1)(e) would work as an extend to forestall entrance to any third celebration and will not work as a bar for a unequivocally chairman who wrote a answer-book, seeking review or avowal of it.
25. An evaluated answer book of an examinee is a multiple of dual opposite `informations’. The initial is a answers total by a examinee and second is a marks/assessment by a examiner. When an examinee seeks review of his evaluated answer-books or seeks a approved duplicate of a evaluated answer-book, a information sought by him is not unequivocally a answers he has total in a answer-books (which he already knows), nor a sum outlines reserved for a answers (which has been declared). What he unequivocally seeks is a information relating to a break-up of marks, that is, a specific outlines reserved to any of his answers. When an examinee seeks `information’ by inspection/certified copies of his answer-books, he knows a essence thereof being a author thereof. When an examinee is permitted to inspect an answer-book or obtain a approved copy, a examining physique is not unequivocally giving him some information that is reason by it in trust or confidence, yet is customarily giving him an eventuality to review what he had total during a time of hearing or to have a duplicate of his answers. Therefore, in furnishing a duplicate of an answer-book, there is no doubt of crack of confidentiality, privacy, remoteness or trust. The genuine emanate therefore is not in courtesy to a answer-book yet in courtesy to a outlines awarded on analysis of a answer-book. Even here a sum outlines given to a examinee in courtesy to his answer-book are already announced and famous to a examinee. What a examinee indeed wants to know is a break-up of outlines given to him, that is how many outlines were given by a investigator to any of his answers so that he can cruise how is opening has been evaluated and possibly a analysis is scold as per his hopes and expectations. Therefore, a exam for anticipating out possibly a information is exempted or not, is not in courtesy to a answer book yet in courtesy to a analysis by a examiner.
26. This takes us to a essential emanate of analysis by a examiner. The examining physique engages or employs hundreds of examiners to do a analysis of thousands of answer books. The doubt is possibly a information relating to a `evaluation’ (that is assigning of marks) is reason by a examining physique in a fiduciary relationship. The examining bodies contend that even if fiduciary attribute does not exist with anxiety to a examinee, it exists with anxiety to a investigator who evaluates a answer-books. On a clever hearing we find that this row has no merit. The examining physique entrusts a answer-books to an investigator for analysis and pays a investigator for his consultant service. The work of analysis and imprinting a answer-book is an assignment given by a examining physique to a investigator that he discharges for a consideration. Sometimes, an investigator might cruise answer-books, in a march of his employment, as a partial of his duties yet any specific or special remuneration. In other difference a examining physique is a `principal’ and a investigator is a representative entrusted with a work, that is, analysis of answer- books. Therefore, a examining physique is not in a position of a fiduciary with anxiety to a examiner. On a other hand, when an answer-book is entrusted to a investigator for a purpose of evaluation, for a duration a answer-book is in his control and to a border of a liberate of his functions relating to evaluation, a investigator is in a position of a fiduciary with anxiety to a examining physique and he is barred from disclosing a essence of a answer-book or a outcome of analysis of a answer-book to anyone other than a examining body. Once a investigator has evaluated a answer books, he ceases to have any seductiveness in a analysis finished by him. He does not have any copy-right or exclusive right, or confidentiality right in courtesy to a evaluation. Therefore it can't be pronounced that a examining physique binds a evaluated answer books in a fiduciary relationship, qua a examiner.
27. We, therefore, reason that an examining physique does not reason a evaluated answer-books in a fiduciary relationship. Not being information permitted to an examining physique in a fiduciary relationship, a extend underneath domain 8(1)(e) is not permitted to a examining bodies with anxiety to evaluated answer-books. As no other extend underneath domain 8 is permitted in honour of evaluated answer books, a examining bodies will have to assent review sought by a examinees.
Re : Question (iv)
28. When an examining physique engages a services of an investigator to weigh a answer-books, a examining physique expects a investigator not to divulge a information per analysis to anyone other than a examining body. Similarly a investigator also expects that his name and sum would not be disclosed to a possibilities whose answer-books are evaluated by him. In a eventuality of such information being finished known, a discontented examinee who is not confident with a analysis of a answer books, might act to a change of a investigator by attempting to discredit his earthy safety. Further, any confinement on a partial of a investigator that there might be risk to his earthy safety, if his temperament becomes famous to a examinees, might come in a proceed of effective liberate of his duties. The above relates not customarily to a examiner, yet also to a scrutiniser, co-ordinator, and head-examiner who understanding with a answer book. The answer book customarily contains not customarily a signature and formula series of a examiner, yet also a signatures and formula series of a scrutiniser/co- ordinator/head examiner. The information as to a names or sum of a examiners/co-ordinators/scrutinisers/head examiners are therefore exempted from avowal underneath domain 8(1)(g) of RTI Act, on a belligerent that if such information is disclosed, it might discredit their earthy safety. Therefore, if a examinees are to be given entrance to evaluated answer- books possibly by needing review or by extenuation approved copies, such entrance will have to be given customarily to that partial of a answer-book that does not enclose any information or signature of a examiners/co- ordinators/scrutinisers/head examiners, exempted from avowal underneath domain 8(1)(g) of RTI Act. Those portions of a answer-books that enclose information per a examiners/co-ordinators/scrutinisers/head examiners or that might divulge their temperament with anxiety to signature or initials, shall have to be removed, covered, or differently severed from a non-exempted partial of a answer-books, underneath domain 10 of RTI Act.
29. The right to entrance information does not extend over a duration during that a examining physique is approaching to keep a answer-books. In a box of CBSE, a answer-books are compulsory to be confirmed for a duration of 3 months and afterward they are probable to be approaching of/destroyed. Some other examining bodies are compulsory to keep a answer- books for a duration of 6 months. The fact that right to information is permitted in courtesy to answer-books does not meant that answer-books will have to be confirmed for any longer duration than compulsory underneath a manners and regulations of a open authority. The requirement underneath a RTI Act is to make permitted or give entrance to existent information or information that is approaching to be recorded or maintained. If a manners and regulations ruling a functioning of a sold open government need refuge of a information for customarily a singular period, a applicant for information will be entitled to such information customarily if he seeks a information when it is permitted with a open authority. For example, with anxiety to answer-books, if an examinee creates an focus to CBSE for review or extend of approved copies over 3 months (or 6 months or such other duration prescribed for refuge of a annals in courtesy to other examining bodies) from a date of stipulation of results, a focus could be deserted on a belligerent that such information is not available. The energy of a Information Commission underneath domain 19(8)of a RTI Act to need a open government to take any such stairs as might be compulsory to secure correspondence with a sustenance of a Act, does not embody a energy to proceed a open government to safety a information, for any duration incomparable than what is supposing underneath a manners and regulations of a open authority.
30. On seductiveness of a respondents/examinees, it was contended that carrying courtesy to sub-section (3) of domain 8 of RTI Act, there is an pragmatic avocation on a partial of any open government to contend a information for a smallest duration of twenty years and make it permitted whenever an focus was finished in that behalf. This row is formed on a finish misreading and disagreement of domain 8(3). The pronounced sub-section nowhere provides that annals or information have to be confirmed for a duration of twenty years. The duration for that any sold annals or information has to be confirmed would count on a germane orthodox sequence or law of a open government relating to a refuge of records. Section 8(3) provides that information relating to any occurrence, eventuality or matters that has taken place and occurred or happened twenty years before a date on that any ask is finished underneath domain 6, shall be supposing to any chairman creation a request. This means that where any information compulsory to be confirmed and recorded for a duration over twenty years underneath a manners of a open authority, is exempted from avowal underneath any of a supplies of domain 8(1) of RTI Act, then, notwithstanding such exemption, entrance to such information shall have to be supposing by avowal thereof, after a duration of twenty years solely where they describe to information descending underneath clauses (a), (c) and (i) of domain 8(1). In other words, domain 8(3) provides that any insurance opposite avowal that might be available, underneath clauses (b), (d) to (h) and (j) of domain 8(1) will stop to be permitted after twenty years in courtesy to annals that are compulsory to be recorded for some-more than twenty years. Where any record or information is compulsory to be broken underneath a manners and regulations of a open government before to twenty years, domain 8(3) will not forestall drop in suitability with a Rules. Section 8(3) of RTI Act is not therefore a sustenance requiring all `information’ to be recorded and confirmed for twenty years or more, nor does it overrule any manners or regulations ruling a duration for that a record, ask or information is compulsory to be recorded by any open authority.
31. The outcome of a supplies and intrigue of a RTI Act is to sequence `information’ into a 3 categories. They are :
(i) Information that promotes clarity and burden in a operative of any open authority, avowal of that might also assistance in containing or troublesome crime (enumerated in clauses (b) and (c) of domain 4(1) of RTI Act).
(ii) Other information reason by open government (that is all information other than those descending underneath clauses (b) and (c) of domain 4(1) of RTI Act).
(iii) Information that is not reason by or underneath a control of any open government and that can't be accessed by a open government underneath any law for a time being in force.
Information underneath a third difficulty does not tumble within a range of RTI Act. Section 3 of RTI Act gives any citizen, a right to `information’ reason by or underneath a control of a open authority, that falls possibly underneath a initial or second category. In courtesy to a information descending underneath a initial category, there is also a special shortcoming on open authorities to suo moto tell and disseminate such information so that they will be simply and straightforwardly permitted to a open yet any need to entrance them by carrying chance to domain 6 of RTI Act. There is no such requirement to tell and disseminate a other information that falls underneath a second category.
32. The information descending underneath a initial category, enumerated in sections 4(1)(b) & (c) of RTI Act are extracted next :
“4. Obligations of open authorities.-(1) Every open government shall–
(b) tell within one
hundred and twenty days from a dramatization of this Act,–
(i) a sum of a organisation, functions and duties;
(ii) a powers and duties of a officers and employees;
(iii) a procession followed in a welfare creation process, including channels of organization and accountability;
(iv) a norms set by it for a liberate of a functions;
(v) a rules, regulations, instructions, manuals and records, reason by it or underneath a control or used by a employees for discharging a functions;
(vi) a matter of a categories of papers that are reason by it or underneath a control;
(vii) a sum of any arrangement that exists for conference with, or illustration by, a members of a open in propinquity to a plan of a routine or doing thereof;
(viii) a matter of a boards, councils, committees and other bodies consisting of dual or some-more persons constituted as a partial or for a purpose of a advice, and as to possibly meetings of those boards, councils, committees and other bodies are open to a public, or a mins of such meetings are permitted for public;
(ix) a office of a officers and employees;
(x) a monthly arrangement perceived by any of a officers and employees, including a complement of remuneration as supposing in a regulations;
(xi) a bill allocated to any of a agency, indicating a sum of all plans, due expenditures and reports on disbursements made;
(xii) a demeanour of execution of funding programmes, including a amounts allocated and a sum of beneficiaries of such programmes;
(xiii) sum of recipients of concessions, permits or authorisations postulated by it;
(xiv) sum in honour of a information, permitted to or reason by it, reduced in an electronic form;
(xv) a sum of comforts permitted to adults for receiving information, including a operative hours of a library or reading room, if confirmed for open use; (xvi) a names, designations and other sum of a Public Information Officers;
(xvii) such other information as might be prescribed; and afterward refurbish these publications any year;
(c) tell all germane contribution while formulating critical policies or announcing a decisions that impact public;
(emphasis supplied) Sub-sections (2), (3) and (4) of domain 4 relating to distribution of information enumerated in sections 4(1)(b) & (c) are extracted below:
“(2) It shall be a consistent try of any open government to take stairs in suitability with a mandate of proviso (b) of sub-section (1) to yield as many information suo motu to a open during unchanging intervals by several means of communications, including internet, so that a open have smallest review to a use of this Act to obtain information.
(3) For a functions of sub-section (1), any information shall be disseminated widely and in such form and demeanour that is simply permitted to a public.
(4) All materials shall be disseminated holding into caring a cost effectiveness, internal denunciation and a many effective routine of communication in that internal area and a information should be simply accessible, to a border probable in electronic format with a Central Public Information Officer or State Public Information Officer, as a box might be, permitted giveaway or during such cost of a middle or a imitation cost cost as might be prescribed.
Explanation.–For a functions of sub-sections (3) and (4), “disseminated” means creation famous or communicated a information to a open by notice boards, newspapers, open announcements, media broadcasts, a internet or any other means, including review of offices of any open authority.”
33. Some High Courts have reason that domain 8 of RTI Act is in a inlet of an difference to domain 3 that empowers a adults with a right to information, that is a derivative from a leisure of speech; and that therefore domain 8 should be construed strictly, literally and narrowly. This might not be a scold approach. The Act seeks to move about a change between dual opposing interests, as assent between them is essential for preserving democracy. One is to move about clarity and burden by providing entrance to information underneath a control of open authorities.
The other is to guarantee that a explanation of information, in tangible practice, does not dispute with other open interests that embody fit operation of a governments, best use of singular mercantile resources and refuge of confidentiality of supportive information. The preliminary to a Act privately states that a intent of a Act is to harmonize these dual opposing interests. While sections 3 and 4 find to grasp a initial objective, sections 8, 9,10 and 11 find to grasp a second objective. Therefore when domain 8 exempts certain information from being disclosed, it should not be deliberate to be a iron on a right to information, yet as an equally critical sustenance safeguarding other open interests essential for a achievement and refuge of approved ideals.
34. When perplexing to guarantee that a right to information does not dispute with several other open interests (which includes fit operations of a governments, refuge of confidentiality of supportive information, best use of singular mercantile resources, etc.), it is challenging to visualize and enumerate all forms of information that need to be exempted from avowal in open interest. The legislature has however finished an try to do so. The gazette of exemptions is some-more downright than a gazette of exemptions attempted in a progressing Act that is domain 8 of Freedom to Information Act, 2002. The Courts and Information Commissions enforcing a supplies of RTI Act have to adopt a purposive construction, involving a reasonable and offset proceed that harmonises a dual objects of a Act, while interpreting domain 8 and a other supplies of a Act.
35. At this juncture, it is compulsory to transparent some misconceptions about a RTI Act. The RTI Act provides entrance to all information that is permitted and existing. This is transparent from a total reading of domain 3 and a definitions of `information’ and `right to information’ underneath clauses
(f) and (j) of domain 2 of a Act. If a open government has any information in a form of information or analysed data, or abstracts, or statistics, an applicant might entrance such information, theme to a exemptions in domain 8 of a Act. But where a information sought is not a partial of a record of a open authority, and where such information is not compulsory to be confirmed underneath any law or a manners or regulations of a open authority, a Act does not expel an requirement on a open authority, to collect or collect such non- permitted information and afterwards allow it to an applicant. A open government is also not compulsory to allow information that need sketch of inferences and/or creation of assumptions. It is also not compulsory to yield `advice’ or `opinion’ to an applicant, nor compulsory to obtain and allow any `opinion’ or `advice’ to an applicant. The anxiety to `opinion’ or `advice’ in a clarification of `information’ in domain 2(f) of a Act, customarily refers to such element permitted in a annals of a open authority. Many open authorities have, as a open propinquity exercise, yield advice, superintendence and opinion to a citizens. But that is quite intentional and should not be confused with any requirement underneath a RTI Act.
36. Section 19(8) of RTI Act has entrusted a Central/State Information Commissions, with a energy to need any open government to take any such stairs as might be compulsory to secure a correspondence with a supplies of a Act. Apart from a generality of a pronounced power, proviso (a) of domain 19(8) refers to 6 specific powers, to exercise a sustenance of a Act. Sub-clause (i) empowers a Commission to need a open government to yield entrance to information if so requested in a sold `form’ (that is possibly as a document, micro film, compress disc, pendrive, etc.). This is to secure correspondence with domain 7(9) of a Act. Sub-clause (ii) empowers a Commission to need a open government to designate a Central Public Information Officer or State Public Information Officer. This is to secure correspondence with domain 5 of a Act. Sub-clause (iii) empowers a Commission to need a open government to tell certain information or categories of information. This is to secure correspondence with domain 4(1) and (2) of RTI Act. Sub-clause (iv) empowers a Commission to need a open authority to make compulsory changes to a practices relating to a maintenance, government and drop of a records. This is to secure correspondence with proviso (a) of domain 4(1) of a Act. Sub-clause (v) empowers a Commission to need a open government to boost a training for a officials on a right to information. This is to secure correspondence with sections 5, 6 and 7 of a Act. Sub-clause (vi) empowers a Commission to need a open government to yield annual reports in courtesy to a correspondence with proviso (b) of domain 4(1). This is to guarantee correspondence with a supplies of proviso (b) of domain 4(1) of a Act. The energy underneath domain 19(8) of a Act however does not extend to requiring a open government to take any stairs that are not compulsory or contemplated to secure correspondence with a supplies of a Act or to emanate directions over a supplies of a Act. The energy underneath domain 19(8) of a Act is dictated to be used by a Commissions to guarantee correspondence with a Act, in sold guarantee that any open government maintains a annals duly catalogued and indexed in a demeanour and in a form that facilitates a right to information and guarantee that a annals are computerized, as compulsory underneath proviso (a) of domain 4(1) of a Act; and to guarantee that a information enumerated in clauses (b) and (c) of sections 4(1) of a Act are published and disseminated, and are intermittently updated as supposing in sub- sections (3) and (4) of domain 4 of a Act. If a `information’ enumerated in proviso (b) of domain 4(1) of a Act are effectively disseminated (by publications in imitation and on websites and other effective means), detached from providing clarity and accountability, adults will be means to entrance germane information and equivocate nonessential applications for information underneath a Act.
37. The right to information is a loving right. Information and right to information are dictated to be challenging collection in a hands of obliged adults to quarrel crime and to move in clarity and accountability. The supplies of RTI Act should be enforced particularly and all efforts should be finished to move to light a compulsory information underneath proviso (b) of domain 4(1) of a Act that relates to securing clarity and burden in a operative of open authorities and in troublesome corruption. But in courtesy to other information,(that is information other than those enumerated in domain 4(1)(b) and (c) of a Act), equal significance and significance are given to other open interests (like confidentiality of supportive information, fealty and fiduciary relationships, fit operation of governments, etc.). Indiscriminate and unreal final or directions underneath RTI Act for avowal of all and various information (unrelated to clarity and burden in a functioning of open authorities and expulsion of corruption) would be counter-productive as it will adversely impact a potency of a administration and outcome in a executive removing bogged down with a non-productive work of collecting and furnishing information. The Act should not be authorised to be dissipated or abused, to turn a apparatus to hinder a inhabitant growth and integration, or to destroy a peace, peace and assent among a citizens. Nor should it be converted into a apparatus of hardship or danger of honest officials essay to do their duty. The republic does not wish a unfolding where 75% of a staff of open authorities spends 75% of their time in collecting and furnishing information to field instead of discharging their unchanging duties. The hazard of penalties underneath a RTI Act and a vigour of a authorities underneath a RTI Act should not lead to employees of a open authorities prioritising `information furnishing’, during a cost of their normal and unchanging duties.
38. In perspective of a foregoing, a sequence of a High Court directing a examining bodies to assent examinees to have review of their answer books is affirmed, theme to a clarifications per a range of a RTI Act and a safeguards and conditions theme to that `information’ should be furnished. The appeals are approaching of accordingly.
[R. V. Raveendran]
[A. K. Patnaik] New Delhi;
August 9, 2011.