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LATEST NEWS UPDATES | Correcting a practice by V Venkatesan

Correcting a practice by V Venkatesan

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published Published on Aug 26, 2011   modified Modified on Aug 26, 2011

The apex court upholds an order allowing students to inspect their answer sheets but makes discomfiting observations on the scope of the RTI Act.

IN 2008, the Central Board of Secondary Education (CBSE) rejected an application filed by a candidate under the Right to Information Act for the inspection and re-evaluation of his Secondary School Examination answer books. The reason cited was that the CBSE shared a fiduciary relationship with its evaluators and maintained confidentiality of the manner and method of evaluation.

Section 8(1)(e) of the RTI Act exempts a public authority from disclosing information if it is held in a fiduciary relationship unless the authority is satisfied that the larger public interest warrants such disclosure. Further, the CBSE claimed that its examination bye-laws barred re-evaluation, disclosure or inspection of answer books, and what was permissible was only a verification of marks.

The CBSE submitted that the procedure evolved and adopted by it in the evaluation of answer books ensured fairness and accuracy and made the entire process as foolproof as possible. Further, it claimed that if candidates were to be permitted to seek the re-evaluation of answer books, it would create confusion and chaos, subjecting its elaborate system of examinations to delay and disarray apart from necessitating huge additional staff and infrastructure.

The Calcutta High Court, which first heard the candidate's challenge against the CBSE's rejection of his application, directed the CBSE to permit the candidate to inspect his answer books even while denying the candidate any right to seek its re-evaluation under the RTI Act. The CBSE appealed against this direction in the Supreme Court. In its detailed judgment delivered on August 9, the Supreme Court Bench comprising Justices R.V. Raveendran and A.K. Patnaik held that the definition of “information” under the Act referred, among other things, to documents, and that the answer book, submitted by a candidate to the examining body for evaluation and declaration of the result, was a document or record. The evaluated answer book becomes a record containing the “opinion” of the examiner and, therefore, it was “information” under the Act, the Bench observed.

The Supreme Court Bench concurred with the High Court that the provisions of the RTI Act would prevail over the bye-laws/rules of the examining bodies with regard to examinations if they were inconsistent with each other. Section 22 of the RTI Act specifically provides for this overriding effect of the Act over other provisions which appear inconsistent. Therefore, the CBSE's claim that it had to comply with its bye-laws that barred the inspection of answer books by candidates, rather than with the RTI Act, was untenable.

Disclosure of information

The Bench then held that the Act exempted the disclosure of information if held in a fiduciary relationship only to third parties. There is no question of the fiduciary withholding information relating to the beneficiary from the beneficiary himself. Therefore, it held that the examining body, if it is in a fiduciary relationship with an examinee, would be liable to make a full disclosure of the evaluated answer books to the examinee. At the same time, the court observed, it owed a duty to the examinee not to disclose the answer books to anyone else.

The CBSE then claimed that there was a fiduciary relationship between it and the examiner who evaluated the answer books. The Bench disagreed with this view and held that once the examiner had evaluated the answer books, he ceased to have any interest in the evaluation done by him. The examiner does not have any copyright, proprietary right or confidentiality right in regard to the evaluation, it said.

On the contrary, it is the examiner who 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, the Bench observed.

Exemption

The Bench, however, made it clear that if the examinees were to be given access to evaluated answer books either by permitting inspection or by granting certified copies, such access would have to be given only to that part of the answer book which does not contain any information or signature of the examiners/coordinators/scrutinisers/head examiners, and this could be exempted from disclosure under the Act. This part of the information about the examiners must be removed, covered or severed from the non-exempted part of the answer books, the Bench ruled. The Bench also added that the right to access information about answer books did not extend beyond the period during which the examining body is expected to retain the answer books. The CBSE maintains the answer books for a period of three months, after which it is liable to dispose of or destroy them.

Information-seekers have generally welcomed the Bench's directions in the case. However, some of the Bench's observations on the scope of the RTI Act and the conditions subject to which “information” should be furnished have been of concern to them. They feel it is surprising that the Bench made these observations even though they were not at all relevant to the case before it.

The Bench observed that a public authority was not required to collect or collate non-available information and then furnish it to an applicant. A public authority, the Bench held, was also not required to furnish information which required the drawing of inferences and/or the making of assumptions.

The Bench added that indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it would adversely affect the efficiency of administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.

Information-seekers are concerned that the authorities may take refuge under these observations of the Bench and deny them information. They are disappointed that the Bench described the work of “collecting and furnishing information” as non-productive work. In most cases before the Information Commissions, the authorities are called upon to collect and collate information which may not be readily available but which could be gathered with some effort. The Bench's observations, it is feared, will come in the way of Central and State Information Commissions seeking to achieve the objectives of the Act.

More important, under the Act, the authorities are not expected to question the objectives of the information-seekers. Therefore, the Bench's observation that demands for information must be “related to transparency and accountability in the functioning of public authorities and eradication of corruption” may unnecessarily endow the authorities with unnecessary discretion in examining the motives of the information-seekers.

Clearly, many feel, these observations are against the spirit of the RTI Act, and it would be in the Act's interest if they were considered obiter dicta rather than binding on the authorities and the Information Commissions.

Frontline, Volume 28, Issue 18, 27 August-09 September, 2011, http://www.frontlineonnet.com/stories/20110909281804800.htm


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