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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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                                                                            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 

                                                6

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 

                                                    12

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 

                                                     13

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;

                                                14

(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 

                                                       15

       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 

                                                       25

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 

                                                       29

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." 

                                                      30

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 

                                                    31

       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 

                                                32

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 

                                                   33

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 

                                                     34

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 

                                                    35

       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 

                                                 36

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 

                                               37

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 

                                                  38

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 

                                               40

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 

                                              42

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 

                                                 43

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 

                                                     44

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 

                                                45

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;

                                    46

         (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)

                                                    47

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. 

                                               48

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 

                                                 49

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' 

                                                50

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 

                                               51

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-

                                               52

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 

                                                53

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 

                                     54

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.
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