The appellant Institute of Chartered Accountants of India (for short `ICAI’) is a body corporate established under section 3 of the Chartered Accountants Act, 1949. One of the functions of the appellant council is to conduct the examination of candidates for enrolment as Chartered Accountants. The first respondent appeared in the Chartered Accountants’ final examination conducted by ICAI in November, 2007. The results were declared in January 2008. The first respondent who was not successful in the examination applied for verification of marks.

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 Reportable

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 7571 OF 2011

 [Arising out of SLP (C) No.2040/2011]

The Institute of Chartered Accountants of India ... Appellant

Vs.

Shaunak H.Satya & Ors. ... Respondents

 J U D G M E N T

R.V.RAVEENDRAN,J.

 Leave granted. 

2. The appellant Institute of Chartered Accountants of India (for short 

`ICAI') is a body corporate established under section 3 of the Chartered 

Accountants Act, 1949. One of the functions of the appellant council is to 

conduct the examination of candidates for enrolment as Chartered 

Accountants. The first respondent appeared in the Chartered Accountants' 

final examination conducted by ICAI in November, 2007. The results were 

declared in January 2008. The first respondent who was not successful in the 

examination applied for verification of marks. The appellant carried out the 

verification in accordance with the provisions of the Chartered Accountants 

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Regulations, 1988 and found that there was no discrepancy in evaluation of 

answerscripts. The appellant informed the first respondent accordingly.

3. On 18.1.2008 the appellant submitted an application seeking the 

following information under 13 heads, under the Right to Information Act, 

2005 (`RTI Act' for short) :

 "1) Educational qualification of the examiners & Moderators with subject 

 wise classifications. (you may not give me the names of the examiners & 

 moderators).

 2) Procedure established for evaluation of exam papers.

 3) Instructions issued to the examiners, and moderators oral as well as 

 written if any.

 4) Procedure established for selection of examiners & moderators.

 5) Model answers if any given to the examiners & moderators if any.

 6) Remuneration paid to the examiners & moderators.

 7) Number of students appearing for exams at all levels in the last 2 years 

 (i.e. PE1/PE2/PCC/CPE/Final with break up)

 8) Number of students that passed at the 1st attempt from the above.

 9) From the number of students that failed in the last 2 years (i.e. 

 PE1/PE2/PCC/CPE/Final with break up) from the above, how many 

 students opted for verification of marks as per regulation 38.

 10) Procedure adopted at the time of verification of marks as above.

 11) Number of students whose marks were positively changed out of those 

 students that opted for verification of marks.

 12) Educational qualifications of the persons performing the verification 

 of marks under Regulation 38 & remuneration paid to them.

 13) Number of times that the council has revised the marks of any 

 candidate, or any class of candidates, in accordance with regulation 

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 39(2) of the Chartered Accountants Regulations, 1988, the criteria 

 used for such discretion, the quantum of such revision, the quantum 

 of such revision, the authority that decides such discretion, and the 

 number of students along with the quantum of revision affected by 

 such revision in the last 5 exams, held at all levels (i.e. 

 PE1/PE2/PCC/CPE/Final with break up)." 

 (emphasis supplied)

4. The appellant by its reply dated 22.2.2008 gave the following 

responses/information in response to the 13 queries :

 "1. Professionals, academicians and officials with relevant academic and 

 practical experience and exposure in relevant and related fields.

 2&3. Evaluation of answer books is carried out in terms of the 

 guidance including instructions provided by Head Examiners 

 appointed for each subject(s). Subsequently, a review thereof is 

 undertaken for the purpose of moderators. 

 4. In terms of (1) above, a list of examiners is maintained under 

 Regulation 42 of the Chartered Accountants Regulations, 1988. Based on 

 the performance of the examiners, moderators are appointed from amongst 

 the examiners.

 5. Solutions are given in confidence of examiners for the purpose of 

 evaluation. Services of moderators are utilized in our context for 

 paper setting.

 6. Rs.50/- per answer book is paid to the examiner while Rs.10,000/- is 

 paid to the moderator for each paper.

 7. The number of students who appeared in the last two years is as follow:

 Month & Number of students Appeared

 Year

 PE-I PE-II PCC CPE* FINAL

 Nov.,2005 16228 47522 Not held Not held 28367

 May,2006 32215 49505 Not held Not held 26254

 Nov.,2006 16089 49220 Not held 27629 24704

 May,2007 6194 56624 51 42910 23490

 *CPE is read as Common Proficiency Test (CPT).

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8. Since such a data is not compiled, it is regretted that the number of 

students who passed Final Examination at the 1st attempt cannot be made 

available.

9. The number of students who applied for the verification of answer 

books is as follows:-

 Month & Number of students who applied for verification from 

 Year among the failed candidates*

 PE-I PE-II PCC CPE FINAL

 Nov.,2005 598 4150 Not held Not held 4432

 May,2006 1607 4581 Not held Not held 4070

 Nov.,2006 576 4894 Not held 205 3352

 May,2007 204 5813 07 431 3310

* This figure may contain some pass candidates also.

10. Each request for verification is processed in accordance with 

 Regulation 39(4) of the Chartered Accountants Regulation, 1988 

 through well laid down scientific and meticulous procedure and a 

 comprehensive checking is done before arriving at any conclusion. 

 The process of verification starts after declaration of result and each 

 request is processed on first come first served basis. The verification of 

 the answer books, as requested, is done by two independent persons 

 separately and then, reviewed by an Officer of the Institute and upon 

 his satisfaction, the letter informing the outcome of the verification 

 exercise is issued after the comprehensive check has been 

 satisfactorily completed.

11. The number of students who were declared passed consequent to 

the verification of answer books is as given below:-

 Month & Number of students who applied for verification from 

 Year among the failed candidates*

 PE-I PE-II PCC CPE FINAL

 Nov.,2005 14 40 Not held Not held 37

 May,2006 24 86 Not held Not held 30

 Nov.,2006 07 61 Not held 02 35

 May,2007 03 56 Nil Nil 27

* This figure may contain some pass candidates also.

12. Independent persons such as retired Govt. teachers/Officers are 

assigned the task of verification of answer books work. A token 

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 honorarium of Rs.6/- per candidate besides lump sum daily conveyance 

 allowance is paid.

 13. The Examination Committee in terms of Regulation 39(2) has the 

 authority to revise the marks based on the findings of the Head 

 Examiners and incidental information in the knowledge of the 

 Examination Committee, in its best wisdom. Since the details 

 sought are highly confidential in nature and there is no larger 

 public interest warrants disclosure, the same is denied under 

 Section 8(1)(e) of the Right to Information Act, 2005."

 (emphasis supplied)

5. Not being satisfied with the same, the respondent filed an appeal 

before the appellate authority. The appellate authority dismissed the appeal, 

by order dated 10.4.2008, concurring with the order of the Chief Public 

Information Officer of the appellant. The first respondent thereafter filed a 

second appeal before the Central Information Commission (for short `CIC') 

in regard to queries (1) to (5) and (7) to (13). CIC by order dated 23.12.2008 

rejected the appeal in regard to queries 3, 5 and 13 (as also Query 2) while 

directing the disclosure of information in regard to the other questions. We 

extract below the reasoning given by the CIC to refuse disclosure in regard 

to queries 3,5 and 13.

 "Re: Query No.3. 

 Decision:

 This request of the Appellant cannot be without seriously and perhaps 

 irretrievably compromising the entire examination process. An instruction 

 issued by a public authority - in this case, examination conducting 

 authority - to its examiners is strictly confidential. There is an implied 

 contract between the examiners and the examination conducting public 

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 authority. It would be inappropriate to disclose this information. This item 

 of information too, like the previous one, attracts section 8(1)(d) being the 

 intellectual property of the public authority having being developed 

 through careful empirical and intellectual study and analysis over the 

 years. I, therefore, hold that this item of query attracts exemption under 

 section 8(1)(e) as well as section 8(1)(d) of the RTI Act. 

 Re : Query No.5. 

 Decision:

 Respondents have explained that what they provide to the examiners is 

 "solutions" and not "model answers" as assumed by the appellant. For the 

 aid of the students and examinees, "suggested answers" to the questions in 

 an exam are brought out and sold in the market. 

 It would be wholly inappropriate to provide to the students the solutions 

 given to the questions only for the exclusive use of the examiners and 

 moderators. Given the confidentiality of interaction between the public 

 authority holding the examinations and the examiners, the "solutions" 

 qualifies to be items barred by section 8(1)(e) of the RTI Act. This item of 

 information also attracts section 8(1)(d) being the exclusive intellectual 

 property of the public authority. Respondents have rightly advised the 

 appellant to secure the "suggested answers" to the questions from the open 

 market, where these are available for sale.

 Re : Query No.13. 

 Decision:

 I find no infirmity in the reply furnished to the appellant. It is a categorical 

 statement and must be accepted as such. Appellant seems to have certain 

 presumptions and assumptions about what these replies should be. 

 Respondents are not obliged to cater to that. It is therefore held that there 

 shall be no further disclosure of information as regards this item of 

 query."

6. Feeling aggrieved by the rejection of information sought under items 

3, 5 and 13, the first respondent approached the Bombay High Court by 

filing a writ petition. The High Court allowed the said petition by order 

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dated 30.11.2010 and directed the appellant to supply the information in 

regard to queries 3, 5 and 13, on the following reasoning :

 "According to the Central Information Commission the solutions which 

 have been supplied by the Board to the examiners are given in confidence 

 and therefore, they are entitled to protection under Section 8(1)(e) of the 

 RTI Act. Section 8(1)(e) does not protect confidential information and the 

 claim of intellectual property has not made by the respondent No.2 

 anywhere. In the reply it is suggested that the suggested answers are 

 published and sold in open market by the Board. Therefore, there can be 

 no confidentiality about suggested answers. It is no where explained what 

 is the difference between the suggested answers and the solutions. In our 

 opinion, the orders of both Authorities in this respect also suffer from non-

 application of mind and therefore they are liable to be set aside. We find 

 that the right given under the Right to Information Act has been dealt with 

 by the Authorities under that Act in most casual manner without properly 

 applying their minds to the material on record. In our opinion, therefore, 

 information sought against queries Nos.3,5 and 13 could not have been 

 denied by the Authorities to the petitioner. The principal defence of the 

 respondent No.2 is that the information is confidential. Till the result of 

 the examination is declared, the information sought by the petitioner has to 

 be treated as confidential, but once the result is declared, in our opinion, 

 that information cannot be treated as confidential. We were not shown 

 anything which would even indicate that it is necessary to keep the 

 information in relation to the examination which is over and the result is 

 also declared as confidential."

7. The said order of the High Court is challenged in this appeal by 

special leave. The appellant submitted that it conducts the following 

examinations: (i) the common proficiency test; (ii) professional education 

examination-II (till May 2010); (iii) professional competence examination; 

(iv) integrated professional competence examination; (v) final examination; 

and (vi) post qualification course examinations. A person is enrolled as a 

Chartered Accountant only after passing the common proficiency test, 

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professional educational examination-II/professional competence 

examination and final examination. The number of candidates who applied 

for various examinations conducted by ICAI were 2.03 lakhs in 2006, 4.16 

lakhs in 2007; 3.97 lakh candidates in 2008 and 4.20 lakhs candidates in 

2009. ICAI conducts the examinations in about 343 centres spread over 147 

cities throughout the country and abroad. The appellant claims to follow the 

following elaborate system with established procedures in connection with 

its examinations, taking utmost care with regard to valuation of answer 

sheets and preparation of results and also in carrying out verification in case 

a student applies for the same in accordance with the following Regulations:

 "Chartered Accountants with a standing of minimum of 5-7 years in the 

 profession or teachers with a minimum experience of 5-7 years in 

 university education system are empanelled as examiners of the Institute. 

 The eligibility criteria to be empanelled as examiner for the examinations 

 held in November, 2010 was that a chartered accountant with a minimum 

 of 3 years' standing, if in practice, or with a minimum of 10 yeas standing, 

 if in service and University lecturers with a minimum of 5 years' teaching 

 experience at graduate/post graduate level in the relevant subjects with 

 examiner ship experience of 5 years. The said criteria is continued to be 

 followed. The bio-data of such persons who wish to be empanelled are 

 scrutinized by the Director of Studies of the Institute in the first instance. 

 Thereafter, Examination Committee considers each such application and 

 takes a decision thereon. The examiners, based on their performance and 

 experience with the system of the ICAI, are invited to take up other 

 assignments of preparation of question paper, suggested solution, marking 

 scheme, etc. and also appointed as Head Examiners to supervise the 

 evaluation carried out by the different examiners in a particular subject 

 from time to time. 

 A question paper and its solution are finalized by different experts in the 

 concerned subject at 3 stages. In addition, the solution is also vetted by 

 Director of Studies of the Institute after the examination is held and before 

 the evaluation of the answer sheets are carried out by examiners. All 

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 possible alternate solutions to a particular question as intimated by 

 different examiners in a subject are also included in the solution. Each 

 examiner in a particular subject is issued detailed instructions on marking 

 scheme by the Head Examiners and general guidelines for evaluation 

 issued by the ICAI. In addition, performance of each examiner, to 

 ascertain whether the said examiner has complied with the instructions 

 issued as also the general guidelines of the Institute, is assessed by the 

 Head Examiner at two stages before the declaration of result. The said 

 process has been evolved based on the experience gained in the last 60 

 years of conducting examinations and to ensure all possible uniformity in 

 evaluation of answer sheets carried out by numerous examiners in a 

 particular subject and to provide justice to the candidates. 

 The examination process/procedure/systems of the ICAI are well in place 

 and have been evolved over several decades out of experience gained. The 

 said process/procedure/systems have adequate checks to ensure fair results 

 and also ensure that due justice is done to each candidate and no candidate 

 ever suffers on any count."

8. The appellant contends that the information sought as per queries (3) 

and (5) - that is, instructions and model answers, if any, issued to the 

examiners and moderators by ICAI cannot be disclosed as they are exempted 

from disclosure under clauses (d) and (e) of sub-section (1) of Section 8 of 

RTI Act. It is submitted that the request for information is also liable to be 

rejected under section 9 of the Act. They also contended that in regard to 

query No.(13), whatever information available had been furnished, apart 

from generally invoking section 8(1)(e) to claim exemption.

9. On the said contentions, the following questions arise for our 

consideration:

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(i) Whether the instructions and solutions to questions (if any) given by 

ICAI to examiners and moderators, are intellectual property of the ICAI, 

disclosure of which would harm the competitive position of third parties and 

therefore exempted under section 8(1)(d) of the RTI Act?

(ii) Whether providing access to the information sought (that is 

instructions and solutions to questions issued by ICAI to examiners and 

moderators) would involve an infringement of the copyright and therefore 

the request for information is liable to be rejected under section 9 of the RTI 

Act?

(iii) Whether the instructions and solutions to questions are information 

made available to examiners and moderators in their fiduciary capacity and 

therefore exempted under section 8(1)(e) of the RTI Act?

(iv) Whether the High Court was justified in directing the appellant to 

furnish to the first respondent five items of information sought (in query 

No.13) relating to Regulation 39(2) of Chartered Accountants Regulations, 

1988?

Re: Question (i)

10. The term `intellectual property' refers to a category of intangible 

rights protecting commercially valuable products of human intellect 

comprising primarily trade mark, copyright and patent right, as also trade 

secret rights, publicity rights, moral rights and rights against unfair 

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competition (vide Black's Law Dictionary, 7th Edition, page 813). Question 

papers, instructions regarding evaluation and solutions to questions (or 

model answers) which are furnished to examiners and moderators in 

connection with evaluation of answer scripts, are literary works which are 

products of human intellect and therefore subject to a copyright. The paper 

setters and authors thereof (other than employees of ICAI), who are the first 

owners thereof are required to assign their copyright in regard to the 

question papers/solutions in favour of ICAI. We extract below the relevant 

standard communication sent by ICAI in that behalf: 

 "The Council is anxious to prevent the unauthorized circulation of 

 Question Papers set for the Chartered Accountants Examinations as well 

 as the solutions thereto. With that object in view, the Council proposes to 

 reserve all copy-rights in the question papers as well as solutions. In order 

 to enable the Council to retain the copy-rights, it has been suggested that it 

 would be advisable to obtain a specific assignment of any copy-rights or 

 rights of publication that you may be deemed to possess in the questions 

 set by you for the Chartered Accountants Examinations and the solutions 

 thereto in favour of the Council. I have no doubt that you will appreciate 

 that this is merely a formality to obviate any misconception likely to arise 

 later on."

In response to it, the paper setters/authors give declarations of assignment, 

assigning their copyrights in the question papers and solutions prepared by 

them, in favour of ICAI. Insofar as instructions prepared by the employees 

of ICAI, the copyright vests in ICAI. Consequently, the question papers, 

solutions to questions and instructions are the intellectual properties of ICAI. 

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The appellant contended that if the question papers, instructions or solutions 

to questions/model answers are disclosed before the examination is held, it 

would harm the competitive position of all other candidates who participate 

in the examination and therefore the exemption under section 8(1)(d) is 

squarely attracted.

11. The first respondent does not dispute that the appellant is entitled to 

claim a copyright in regard to the question papers, solutions/model answers, 

instructions relating to evaluation and therefore the said material constitute 

intellectual property of the appellant. But he contends that the exemption 

under section 8(1)(d) will not be available if the information is merely an 

intellectual property. The exemption under section 8(1)(d) is available only 

in regard to such intellectual property, the disclosure of which would harm 

the competitive position of any third party. It was submitted that the 

appellant has not been able to demonstrate that the disclosure of the said 

intellectual property (instructions and solutions/model answers) would harm 

the competitive position of any third party. 

12. Information can be sought under the RTI Act at different stages or 

different points of time. What is exempted from disclosure at one point of 

time may cease to be exempted at a later point of time, depending upon the 

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nature of exemption. For example, any information which is exempted from 

disclosure under section 8, is liable to be disclosed if the application is made 

in regard to the occurrence or event which took place or occurred or 

happened twenty years prior to the date of the request, vide section 8(3) of 

the RTI Act. In other words, information which was exempted from 

disclosure, if an application is made within twenty years of the occurrence, 

may not be exempted if the application is made after twenty years. Similarly, 

if information relating to the intellectual property, that is the question 

papers, solutions/model answers and instructions, in regard to any particular 

examination conducted by the appellant cannot be disclosed before the 

examination is held, as it would harm the competitive position of 

innumerable third parties who are taking the said examination. Therefore it 

is obvious that the appellant examining body is not liable to give to any 

citizen any information relating to question papers, solutions/model 

answers and instructions relating to a particular examination before the date 

of such examination. But the position will be different once the examination 

is held. Disclosure of the question papers, model answers and instructions in 

regard to any particular examination, would not harm the competitive 

position of any third party once the examination is held. In fact the question 

papers are disclosed to everyone at the time of examination. The appellant 

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voluntarily publishes the "suggested answers" in regard to the question 

papers in the form of a book for sale every year, after the examination. 

Therefore section 8(1)(d) of the RTI Act does not bar or prohibit the 

disclosure of question papers, model answers (solutions to questions) and 

instructions if any given to the examiners and moderators after the 

examination and after the evaluation of answerscripts is completed, as at that 

stage they will not harm the competitive position of any third party. We 

therefore reject the contention of the appellant that if an information is 

exempt at any given point of time, it continues to be exempt for all time to 

come. 

Re : Question (ii)

13. Section 9 of the RTI Act provides that a Central or State Public 

Information Officer may reject a request for information where providing 

access to such information would involve an infringement of copyright 

subsisting in a person other than the State. The word `State' used in section 

9 of RTI Act refers to the Central or State Government, Parliament or 

Legislature of a State, or any local or other authorities as described under 

Article 12 of the Constitution. The reason for using the word `State' and not 

`public authority' in section 9 of RTI Act is apparently because the 

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definition of `public authority' in the Act is wider than the definition of 

`State' in Article 12, and includes even non-government organizations 

financed directly or indirectly by funds provided by the appropriate 

government. Be that as it may. An application for information would be 

rejected under section 9 of RTI Act, only if information sought involves an 

infringement of copyright subsisting in a person other than the State. ICAI 

being a statutory body created by the Chartered Accountants Act, 1948 is 

`State'. The information sought is a material in which ICAI claims a 

copyright. It is not the case of ICAI that anyone else has a copyright in such 

material. In fact it has specifically pleaded that even if the question papers, 

solutions/model answers, or other instructions are prepared by any third 

party for ICAI, the copyright therein is assigned in favour of ICAI. 

Providing access to information in respect of which ICAI holds a copyright, 

does not involve infringement of a copyright subsisting in a person other 

than the State. Therefore ICAI is not entitled to claim protection against 

disclosure under section 9 of the RTI Act.

14. There is yet another reason why section 9 of RTI Act will be 

inapplicable. The words `infringement of copyright' have a specific 

connotation. Section 51 of the Copyright Act, 1957 provides when a 

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copyright in a work shall be deemed to be infringed. Section 52 of the Act 

enumerates the acts which are not infringement of a copyright. A combined 

reading of sections 51 and 52(1)(a) of Copyright Act shows that furnishing 

of information by an examining body, in response to a query under the RTI 

Act may not be termed as an infringement of copyright. Be that as it may.

Re : Question (iii)

15. We will now consider the third contention of ICAI that the 

information sought being an information available to a person in his 

fiduciary relationship, is exempted under section 8(1)(e) of the RTI Act. 

This Court in Central Board of Secondary Education & Anr. v. Aditya 

Bandopadhyay & Ors. [2011 (8) SCALE 645] considered the meaning of the 

words information available to a person in his fiduciary capacity and 

observed thus: 

 "But the words `information available to a person in his fiduciary 

 relationship' are used in section 8(1)(e) of RTI Act in its normal and well 

 recognized sense, that is to refer to persons who act in a fiduciary 

 capacity, with reference to a specific beneficiary or beneficiaries who are 

 to be expected to be protected or benefited by the actions of the fiduciary - 

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

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

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

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

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

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

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

 employer with reference to the confidential information relating to the 

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 employee, and an employee with reference to business 

 dealings/transaction of the employer."

16. The instructions and `solutions to questions' issued to the examiners 

and moderators in connection with evaluation of answer scripts, as noticed 

above, is the intellectual property of ICAI. These are made available by 

ICAI to the examiners and moderators to enable them to evaluate the answer 

scripts correctly and effectively, in a proper manner, to achieve uniformity 

and consistency in evaluation, as a large number of evaluators and 

moderators are engaged by ICAI in connection with the evaluation. The 

instructions and solutions to questions are given by the ICAI to the 

examiners and moderators to be held in confidence. The examiners and 

moderators are required to maintain absolute secrecy and cannot disclose the 

answer scripts, the evaluation of answer scripts, the instructions of ICAI and 

the solutions to questions made available by ICAI, to anyone. The examiners 

and moderators are in the position of agents and ICAI is in the position of 

principal in regard to such information which ICAI gives to the examiners 

and moderators to achieve uniformity, consistency and exactness of 

evaluation of the answer scripts. When anything is given and taken in trust 

or in confidence, requiring or expecting secrecy and confidentiality to be 

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maintained in that behalf, it is held by the recipient in a fiduciary 

relationship.

17. It should be noted that section 8(1)(e) uses the words "information 

available to a person in his fiduciary relationship. Significantly section 

8(1)(e) does not use the words "information available to a public authority 

in its fiduciary relationship". The use of the words "person" shows that the 

holder of the information in a fiduciary relationship need not only be a 

`public authority' as the word `person' is of much wider import than the 

word `public authority'. Therefore the exemption under section 8(1)(e) is 

available not only in regard to information that is held by a public authority 

(in this case the examining body) in a fiduciary capacity, but also to any 

information that is given or made available by a public authority to anyone 

else for being held in a fiduciary relationship. In other words, anything given 

and taken in confidence expecting confidentiality to be maintained will be 

information available to a person in fiduciary relationship. As a 

consequence, it has to be held that the instructions and solutions to questions 

communicated by the examining body to the examiners, head-examiners and 

moderators, are information available to such persons in their fiduciary 

relationship and therefore exempted from disclosure under section 8(1)(d) of 

RTI Act.

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18. The information to which RTI Act applies falls into two categories, 

namely, (i) information which promotes transparency and accountability in 

the working of every public authority, disclosure of which helps in 

containing or discouraging corruption, enumerated in clauses (b) and (c) of 

section 4(1) of RTI Act; and (ii) other information held by public authorities 

not falling under section 4(1)(b) and (c) of RTI Act. In regard to information 

falling under the first category, the public authorities owe a duty to 

disseminate the information widely suo moto to the public so as to make it 

easily accessible to the public. In regard to information enumerated or 

required to be enumerated under section 4(1)(b) and (c) of RTI Act, 

necessarily and naturally, the competent authorities under the RTI Act, will 

have to act in a pro-active manner so as to ensure accountability and ensure 

that the fight against corruption goes on relentlessly. But in regard to other 

information which do not fall under Section 4(1)(b) and (c) of the Act, there 

is a need to proceed with circumspection as it is necessary to find out 

whether they are exempted from disclosure. One of the objects of democracy 

is to bring about transparency of information to contain corruption and bring 

about accountability. But achieving this object does not mean that other 

equally important public interests including efficient functioning of the 

governments and public authorities, optimum use of limited fiscal resources, 

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preservation of confidentiality of sensitive information, etc. are to be ignored 

or sacrificed. The object of RTI Act is to harmonize the conflicting public 

interests, that is, ensuring transparency to bring in accountability and 

containing corruption on the one hand, and at the same time ensure that the 

revelation of information, in actual practice, does not harm or adversely 

affect other public interests which include efficient functioning of the 

governments, optimum use of limited fiscal resources and preservation of 

confidentiality of sensitive information, on the other hand. While sections 3 

and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to 

achieve the second objective. Therefore when section 8 exempts certain 

information from being disclosed, it should not be considered to be a fetter 

on the right to information, but as an equally important provision protecting 

other public interests essential for the fulfilment and preservation of 

democratic ideals. Therefore in dealing with information not falling under 

section 4(1)(b) and (c), the competent authorities under the RTI Act will not 

read the exemptions in section 8 in a restrictive manner but in a practical 

manner so that the other public interests are preserved and the RTI Act 

attains a fine balance between its goal of attaining transparency of 

information and safeguarding the other public interests. 

 21

19. Among the ten categories of information which are exempted from 

disclosure under section 8 of RTI Act, six categories which are described in 

clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information 

enumerated in clauses (d), (e) and (j) on the other hand get only conditional 

exemption, that is the exemption is subject to the overriding power of the 

competent authority under the RTI Act in larger public interest, to direct 

disclosure of such information. The information referred to in clause (i) 

relates to an exemption for a specific period, with an obligation to make the 

said information public after such period. The information relating to 

intellectual property and the information available to persons in their 

fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not 

enjoy absolute exemption. Though exempted, if the competent authority 

under the Act is satisfied that larger public interest warrants disclosure of 

such information, such information will have to be disclosed. It is needless 

to say that the competent authority will have to record reasons for holding 

that an exempted information should be disclosed in larger public interest.

20. In this case the Chief Information Commissioner rightly held that the 

information sought under queries (3) and (5) were exempted under section 

8(1)(e) and that there was no larger public interest requiring denial of the 

statutory exemption regarding such information. The High Court fell into an 

 22

error in holding that the information sought under queries (3) and (5) was 

not exempted. 

Re : Question (iv)

21. Query (13) of the first respondent required the appellant to disclose 

the following information: (i) The number of times ICAI had revised the 

marks of any candidate or any class of candidates under Regulation 39(2); 

(ii) the criteria used for exercising such discretion for revising the marks; 

(iii) the quantum of such revisions; (iv) the authority who decides the 

exercise of discretion to make such revision; and (v) the number of students 

(with particulars of quantum of revision) affected by such revision held in 

the last five examinations at all levels. 

22. Regulation 39(2) of the Chartered Accountants Regulations, 1988 

provides that the council may in its discretion, revise the marks obtained by 

all candidates or a section of candidates in a particular paper or papers or in 

the aggregate, in such manner as may be necessary for maintaining its 

standards of pass percentage provided in the Regulations. Regulation 39(2) 

thus provides for what is known as `moderation', which is a necessary 

concomitant of evaluation process of answer scripts where a large number of 

examiners are engaged to evaluate a large number of answer scripts. This 

 23

Court explained the standard process of moderation in Sanjay Singh v. U.P. 

Public Service Commission - 2007 (3) SCC 720 thus:

 "When a large number of candidates appear for an examination, it is 

 necessary to have uniformity and consistency in valuation of the answer- 

 scripts. Where the number of candidates taking the examination are 

 limited and only one examiner (preferably the paper-setter himself) 

 evaluates the answer-scripts, it is to be assumed that there will be 

 uniformity in the valuation. But where a large number of candidates take 

 the examination, it will not be possible to get all the answer-scripts 

 evaluated by the same examiner. It, therefore, becomes necessary to 

 distribute the answer-scripts among several examiners for valuation with 

 the paper-setter (or other senior person) acting as the Head Examiner. 

 When more than one examiner evaluate the answer-scripts relating to a 

 subject, the subjectivity of the respective examiner will creep into the 

 marks awarded by him to the answer- scripts allotted to him for valuation. 

 Each examiner will apply his own yardstick to assess the answer-scripts. 

 Inevitably therefore, even when experienced examiners receive equal 

 batches of answer scripts, there is difference in average marks and the 

 range of marks awarded, thereby affecting the merit of individual 

 candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are 

 liberal in valuation and tend to award more marks. Some examiners are 

 strict and tend to give less marks. Some may be moderate and balanced in 

 awarding marks. Even among those who are liberal or those who are strict, 

 there may be variance in the degree of strictness or liberality. This means 

 that if the same answer-script is given to different examiners, there is all 

 likelihood of different marks being assigned. If a very well written 

 answer-script goes to a strict examiner and a mediocre answer-script goes 

 to a liberal examiner, the mediocre answer-script may be awarded more 

 marks than the excellent answer-script. In other words, there is 'reduced 

 valuation' by a strict examiner and 'enhanced valuation' by a liberal 

 examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. 

 Therefore, there is a need to evolve a procedure to ensure uniformity inter 

 se the Examiners so that the effect of 'examiner subjectivity' or 'examiner 

 variability' is minimised. The procedure adopted to reduce examiner 

 subjectivity or variability is known as moderation. The classic method of 

 moderation is as follows:

 xxx xxx xxx

 (ii) To achieve uniformity in valuation, where more than one examiner is 

 involved, a meeting of the Head Examiner with all the examiners is held 

 soon after the examination. They discuss thoroughly the question paper, 

 the possible answers and the weightage to be given to various aspects of 

 24

the answers. They also carry out a sample valuation in the light of their 

discussions. The sample valuation of scripts by each of them is reviewed 

by the Head Examiner and variations in assigning marks are further 

discussed. After such discussions, a consensus is arrived at in regard to the 

norms of valuation to be adopted. On that basis, the examiners are 

required to complete the valuation of answer scripts. But this by itself, 

does not bring about uniformity of assessment inter se the examiners. In 

spite of the norms agreed, many examiners tend to deviate from the 

expected or agreed norms, as their caution is overtaken by their propensity 

for strictness or liberality or eroticism or carelessness during the course of 

valuation. Therefore, certain further corrective steps become necessary.

(iii) After the valuation is completed by the examiners, the Head Examiner 

conducts a random sample survey of the corrected answer scripts to verify 

whether the norms evolved in the meetings of examiner have actually been 

followed by the examiners...........

(iv) After ascertaining or assessing the standards adopted by each 

examiner, the Head Examiner may confirm the award of marks without 

any change if the examiner has followed the agreed norms, or suggest 

upward or downward moderation, the quantum of moderation varying 

according to the degree of liberality or strictness in marking. In regard to 

the top level answer books revalued by the Head Examiner, his award of 

marks is accepted as final. As regards the other answer books below the 

top level, to achieve maximum measure of uniformity inter se the 

examiners, the awards are moderated as per the recommendations made by 

the Head Examiner.

(v) If in the opinion of the Head Examiner there has been erratic or 

careless marking by any examiner, for which it is not feasible to have any 

standard moderation, the answer scripts valued by such examiner are 

revalued either by the Head Examiner or any other Examiner who is found 

to have followed the agreed norms.

(vi) Where the number of candidates is very large and the examiners are 

numerous, it may be difficult for one Head Examiner to assess the work of 

all the Examiners. In such a situation, one more level of Examiners is 

introduced. For every ten or twenty examiners, there will be a Head 

Examiner who checks the random samples as above. The work of the 

Head Examiners, in turn, is checked by a Chief Examiner to ensure proper 

results.

The above procedure of 'moderation' would bring in considerable 

uniformity and consistency. It should be noted that absolute uniformity or 

consistency in valuation is impossible to achieve where there are several 

examiners and the effort is only to achieve maximum uniformity."

 25

Each examining body will have its own standards of `moderation', drawn up 

with reference to its own experiences and the nature and scope of the 

examinations conducted by it. ICAI shall have to disclose the said standards 

of moderation followed by it, if it has drawn up the same, in response to part 

(ii) of first respondent's query (13). 

23. In its communication dated 22.2.2008, ICAI informed the first 

respondent that under Regulation 39(2), its Examining Committee had the 

authority to revise the marks based on the findings of the Head Examiners 

and any incidental information in its knowledge. This answers part (iv) of 

query (13) as to the authority which decides the exercise of the discretion to 

make the revision under Regulation 39(2). 

24. In regard to parts (i), (iii) and (v) of query (13), ICAI submits that 

such data is not maintained. Reliance is placed upon the following 

observations of this Court in Aditya Bandopadhyay: 

 "The RTI Act provides access to all information that is available and 

 existing. This is clear from a combined reading of section 3 and the 

 definitions of `information' and `right to information' under clauses (f) 

 and (j) of section 2 of the Act. If a public authority has any information in 

 the form of data or analysed data, or abstracts, or statistics, an applicant 

 may access such information, subject to the exemptions in section 8 of the 

 Act. But where the information sought is not a part of the record of a 

 public authority, and where such information is not required to be 

 maintained under any law or the rules or regulations of the public 

 authority, the Act does not cast an obligation upon the public authority, to 

 26

 collect or collate such non-available information and then furnish it to an 

 applicant."

As the information sought under parts (i), (iii) and (v) of query (13) are not 

maintained and is not available in the form of data with the appellant in its 

records, ICAI is not bound to furnish the same. 

General submissions of ICAI

25. The learned counsel of ICAI submitted that there are several hundred 

examining bodies in the country. With the aspirations of young citizens to 

secure seats in institutions of higher learning or to qualify for certain 

professions or to secure jobs, more and more persons participate in more and 

more examinations. It is quite common for an examining body to conduct 

examinations for lakhs of candidates that too more than once per year. 

Conducting examinations involving preparing the question papers, 

conducting the examinations at various centres all over the country, getting 

the answer scripts evaluated and declaring results, is an immense task for 

examining bodies, to be completed within fixed time schedules. If the 

examining bodies are required to frequently furnish various kinds of 

information as sought in this case to several applicants, it will add an 

enormous work load and their existing staff will not be able to cope up with 

 27

the additional work involved in furnishing information under the RTI Act. It 

was submitted by ICAI that it conducts several examinations every year 

where more than four lakhs candidates participate; that out of them, about 

15-16% are successful, which means that more than three and half lakhs of 

candidates are unsuccessful; that if even one percent at those unsuccessful 

candidates feel dissatisfied with the results and seek all types of unrelated 

information, the working of ICAI will come to a standstill. It was submitted 

that for every meaningful user of RTI Act, there are several abusers who will 

attempt to disrupt the functioning of the examining bodies by seeking huge 

quantity of information. ICAI submits that the application by the first 

respondent is a classic case of improper use of the Act, where a candidate 

who has failed in an examination and who does not even choose to take the 

subsequent examination has been engaging ICAI in a prolonged litigation by 

seeking a bundle of information none of which is relevant to decide whether 

his answer script was properly evaluated, nor have any bearing on 

accountability or reducing corruption. ICAI submits that there should be an 

effective control and screening of applications for information by the 

competent authorities under the Act. We do not agree that first respondent 

had indulged in improper use of RTI Act. His application is intended to 

bring about transparency and accountability in the functioning of ICAI. How 

 28

far he is entitled to the information is a different issue. Examining bodies 

like ICAI should change their old mindsets and tune them to the new regime 

of disclosure of maximum information. Public authorities should realize that 

in an era of transparency, previous practices of unwarranted secrecy have no 

longer a place. Accountability and prevention of corruption is possible only 

through transparency. Attaining transparency no doubt would involve 

additional work with reference to maintaining records and furnishing 

information. Parliament has enacted the RTI Act providing access to 

information, after great debate and deliberations by the Civil Society and the 

Parliament. In its wisdom, the Parliament has chosen to exempt only certain 

categories of information from disclosure and certain organizations from the 

applicability of the Act. As the examining bodies have not been exempted, 

and as the examination processes of examining bodies have not been 

exempted, the examining bodies will have to gear themselves to comply 

with the provisions of the RTI Act. Additional workload is not a defence. If 

there are practical insurmountable difficulties, it is open to the examining 

bodies to bring them to the notice of the government for consideration so 

that any changes to the Act can be deliberated upon. Be that as it may. 

26. We however agree that it is necessary to make a distinction in regard 

to information intended to bring transparency, to improve accountability and 

 29

to reduce corruption, falling under section 4(1)(b) and (c) and other 

information which may not have a bearing on accountability or reducing 

corruption. The competent authorities under the RTI Act will have to 

maintain a proper balance so that while achieving transparency, the demand 

for information does not reach unmanageable proportions affecting other 

public interests, which include efficient operation of public authorities and 

government, preservation of confidentiality of sensitive information and 

optimum use of limited fiscal resources. 

27. In view of the above, this appeal is allowed in part and the order of the 

High Court is set aside and the order of the CIC is restored, subject to one 

modification in regard to query (13): ICAI to disclose to the first respondent, 

the standard criteria, if any, relating to moderation, employed by it, for the 

purpose of making revisions under Regulation 39(2).

 ............................J.

 (R V Raveendran)

New Delhi; ............................J.September 2, 2011. (A K Patnaik) 

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