Supreme Court of India
CENTRAL BOARD OF SECONDARY EDUCATION & ANR.versusADITYA BANDOPADHYAY & ORS.
- Citation
- 2011 INSC 557
- Decided
- 9 August 2011
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
An examinee is entitled to inspect or obtain certified copies of his evaluated answer‑books under the RTI Act, as the books are 'information' and the examining body does not hold them in a fiduciary relationship, subject only to limited exemptions such as examiner identity under Section 8(1)(g).
Summary
The appellant, Central Board of Secondary Education (CBSE), rejected a student's request to inspect and re‑evaluate his evaluated answer‑books, invoking exemption under Section 8(1)(e) of the Right to Information (RTI) Act and its own bye‑laws. The student filed a writ petition seeking a declaration that the refusal was illegal and a direction to produce his answer‑books for inspection. The High Court ordered CBSE to allow inspection of answer‑books but denied re‑evaluation, holding that the answer‑books constitute "information" under the RTI Act. On appeal, the Supreme Court affirmed that every examinee has a right to inspect or obtain certified copies of his evaluated answer‑books unless the books fall within a specific exemption, and that the examined bodies do not hold the books in a fiduciary relationship that would trigger Section 8(1)(e). The Court also clarified that only portions revealing examiner identities are exempt under Section 8(1)(g) and that the right to information exists only while the records are retained. Consequently, the High Court’s order directing inspection was upheld with the stated safeguards.
Issues considered
- Whether an examinee's right to information under the RTI Act includes inspection of his evaluated answer‑books or obtaining certified copies thereof.
- Whether the Supreme Court's earlier decisions in Maharashtra State Board of Secondary Education v. Paritosh B. Sheth and related cases affect the examinee's right to inspect answer‑books.
- Whether an examining body holds evaluated answer‑books in a fiduciary relationship, thereby invoking the exemption under Section 8(1)(e) of the RTI Act.
- Whether the right to inspect answer‑books is subject to any limitations, conditions or safeguards, including protection of examiner identities.
Legislation cited
- Right to Information Act, 2005s. 10, s. 22, s. 24, s. 2(f), s. 2(i), s. 2(j), s. 3, s. 8, s. 8(1)(e), s. 8(3), s. 9
Subjects
Right to Information Actexam answer‑book inspectionfiduciary relationshipSection 8 exemptionpublic authorityinformation accesscertified copiesexamination boardtransparencyaccountability
Judgment
[2011] 11 S.C.R. 1028
A CENTRAL BOARD OF SECONDARY EDUCATION &
ANR.
v.
ADITYA BANDOPADHYAY & ORS.
(Civil Appeal No. 6454 of 2011)
B
AUGUST 09, 2011
[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]
Right to Information Act, 2005:
c
ss. 8 (1)(e), 2 (f), 2(i), 2(j), 3, 24 and 9 - Public
examination - Examinee's right to inspect his evaluated
answer books in a public examination or taking certified
copies - Scope of - Held: Every examinee has the right to
D access his evaluated answer-books, by either inspecting them
or take certified copies thereof, .unless the evaluated answer-
books are found to be exempted u/s. 8(1)(e) - Answer-book
is a document or record in terms of s. 2(i) and as such the
evaluated answer-book is also an 'information' under the Act
- Under s. 3, the citizens have the right to access to all
E information held by or under the control of any public authority
except those excluded or exempted under the Act -
Examining bodies (Universities, Examination Boards, CBSE
etc.) are neither security nor intelligence organisations -
Disclosure of information with reference to answer-books also
F does not involve infringement of any copyright - Thus, the
exemption u/ss. 24 and 9 would not apply to them.
s. 22 - Overriding effect of - Right of an examinee
seeking inspection of his answer books or seeking certified
G copies thereof - Effect of decision of this Court in
*Maharashtra State Board of Secondary Education v,
Paritosh B. Sheth on such right - Held: Decision of this Court
in *Maharashtra State Board and the subsequent decisions
following the same, would not affect or interfere with the right
H 1028
CENTRAL BOARD OF SECONDARY EDUCATION v. 1029
ADITYA BANDOPADHYAY
of the examinee seeking inspection of answer-books or taking A
certified copies thereof - RT/ Act enables/entitles the student
to have access to the answer-books as 'information' and
inspect them and take certified copies thereof - s. 22 provides
that the provisions of the Act would have effect,
notwithstanding anything inconsistent therewith contained in B
any other law for the time being in force - Thus, the provisions
of the RT/ Act would prevail over the provisions of the bye-
lawslru/es 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 c
category of information described in clause (e) of s. 8(1), the
examining body would 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 D
examinations.
s. 8(1)(e)- Whether examining body holds the evaluated
answer books "in a fiduciary relationship" and thus, has no
obligation to give inspection of the evaluated answer books
u/s. 8 (1)(e) - Held: Examining body does not hold the E
evaluated answer books in a fiduciary relationship, qua the
examiner - Not being information available to an examining
body in its fiduciary relationship, the exemption uls. 8(1)(e)
is not available to the examining bodies with reference to
evaluated answer-books and the examining bodies will have F
to permit inspection sought by the examinees.
Right of inspection of the evaluated answer books or
seeking certified copies thereof by examinee - Limitations,
conditions or safeguards to such right - Held: Portions of G
answer-books containing information regarding the
examiners/co-ordinators/scrutinisers/head examiners or which
may disclose their identify with reference to signature or
initials, should be removed, c_overed, or otherwise severed
H
1030 SUPREME COURT REPORTS [2011] 11 S.C.R.
A from the non-exempted part of the answer-books, u/s. 10 -
Right to access information does not extend beyond the
period during which the examining body is expected to retain
the answer-books - s. 8(3) nowhere provides that records or
information have to be maintained for a period of twenty years
B or more nor override any rules or regulations governing the
period for which the record, document or information is
required to be preserved by any public authority.
s. 8 - Interpretation of - Held: Is not to be construed
strictly, literally and narrowly - When s. 8 exempts certain
C 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.
D Enforcement of RT/ Act - ~eld: Should be enforced
strictly - Necessary information under clause (b) of s. 4(1)
relating to. securing transparency and accountability in the
working of public authorities and in discouraging corruption
to be brought to light - Act should not be allowed to be
E 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.
F Object and reasons of the RT/ Act - Explained.
Words and Phrases:
Term 'fiduciary' and 'fiduciary relationship' - Meaning of
G Respondent No. 1 appeared for the Secondary
School Examination, 2008 conducted by appellant-
Central Board of Secondary Education (CBSE). He was
disappointed with his marks and thus, he made an
application for inspection and re-evaluation of his
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1031
ADITYA BANDOPADHYAY
answer-books. CBSE rejected the same. Respondent No. A
1 filed a writ petition seeking 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 India; for a direction to CBSE to B
appoint an independent examiner for re-evaluating his.
answer-books and issue a fresh marks card on the basis
of re-evaluation; for a direction to CBSE to produce his
answer-books in regard to the 2008 Secondary School
Examination and that too into court for inspection by the c
first respondent; and for quashing the communication of
CBSE. The Division Bench of the High Court disposed
of the said writ petition along with the connected writ
petitions directing CBSE to grant inspection of the
answer books to the examinees who sought information,
0
but rejected the prayer made by the examinees for re-
evaluation of the answer-books, as that was not a relief
that was available under Right to Information Act, 2005.
Therefore, the appellant-CBSE filed the instant appeal.
The questions which arose for consideration in these E
appeals are whether an examinee's right to information
under the Right to Information Act, 2005 includes a right
to inspect his evaluated answer books in a public
examination or taking certified copies thereof; whether
the decisions of this Court in *Maharashtra State Board F
of Secondary Education v, Paritosh B. Sheth and other
cases, in any way affect or interfere with the right of an
examinee seeking inspection of his answer books or
seeking certified copies thereof; whether an examining
body holds the evaluated answer books "in a fiduciary G
relationship" and consequently has no obligation to give
inspection of the evaluated answer books under section
8 (1)(e) of RTI Act; and if the eJaminee is entitled to
inspection of the evaluated answer books or seek
certified copies thereof, whether such right is subject to H
1032 SUPREME COURT REPORTS [2011] 11 S.C.R.
A any limitations, conditions or safeguards.
Disposing of the appeals, the Court
HELD: 1. The order of the High Court directing the
examining bodies to permit examinees to have inspection
B of their answer books is upheld, subject to the
clarifications regarding the scope of the Right to
Information Act, 2005 and the safeguards and conditions
subject to which 'information' should be furnished. [Para
38] (1093-F]
c
2.1. 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
0 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
E result, the answer-book is a document or record. When
the answer-book1s eval uated 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. (Para 11] (1066-C-E]
F
2.2. 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 under
G 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
H . empower the citizens to fight against corruption and hold
CENTRAL BOARD OF SECONDARY EDUCATION v. 1033
ADITYA BANDOPADHYAY
the Government and their instrumentalities accountable A
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 B
governments, optimum use of limited fiscal resources
and preservation of confidential and sensitive
information. The RTI Act provides access to information
Iheld by or under the control of public authorities and not
· in regard to information held by any private person. The c
Act provides the exclusions by way of exemptions and
exceptions (under Sections 8, 9 and 24) in regard to
information held by public authorities. 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 D
public authority, should be read in harmony with the
exclusions/exemptions in the Act. [Para 12) [1066-F-H;
1067-A-B-H; 1068-A]
2.3. The examining bodies (Universities, Examination
Boards, CBSC etc.) are neither security nor intelligence E
organisations and therefore, the exemption under
Section 24 would not apply to them. The disclosur.e of
information with reference to answer-books does not
also involve infringement of any copyright and therefore,
Section 9 would not apply. Resultantly, unless the F
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 would be bound to
provide access to the information and any applicant can G
either inspect the document/record, take notes, extracts
or obtain certified copies thereof. Every examinee would
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 H
1034 SUPREME COURT REPORTS [2011] 11 S.C.R.
A exempted under Section 8(1)(e) of the RTI Act. [Paras 13
and 14) (1068-C-FJ
3.1. The principles laid down in decisions such as
*Maharashtra State Board that denial of re-evaluation of
8 answer-books or denial of disclosure by way of
inspection of answer books, to an examinee, under Rule
104(1) and (3) of the Maharashtra Secondary and Higher
Secondary Board Rules, 1977 was not violative of
principles of natural justice and Articles 14 and 19 of the
C Constitution of India, 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, would apply or be relevant.
D There has been a gradual change in trend with several
examining bodies permitting inspection and disclosure
of the answer-books. [Para 16] [1072-D-E]
3.2. A provision barring inspection or disclosure of
E 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-evaluation and
inspection contained in Bye-law No.61, are akin to Rule
F 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
\,;J
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
CENTRAL BOARD OF SECONDARY EDUCATION v. 1035
ADITYA BANDOPADHYAY
examinee, as a citizen to seek access to the answer A
books, as information. [Para 17] [1072-F-H; 1073-A-B]
3.3. In the cases referred, the High Court rightly
denied the prayer for re-evaluation of answer-books
sought by the candidates in view of the bar contained in
B
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, did not arise for consideration. What arose for
consideration is the question whether the examinee is C
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 and entitles them to have access to the answer-
books as 'information' and inspect them and take certified D
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 E
the provisions of the bye-laws/rules of the examining
bodies in regard to examinations. As a result, unless the
examining ·body is abl~ 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 F
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
governi.ng the examinations. Therefore, the decision of G
this Court in Maharashtra State Board 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. [Para 18] [1073-8-H]
.H
1036 SUPREME COURT REPORTS [2011) 11 S.C.R.
A *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: 2004
(3 ) Suppl. SCR 372; Board of Secondary Education vs.
Pavan Ranjan P 2004 (13) SCC 383; Board of Secondary
B Education vs. S 2007 (1) SCC 603; Secretary, West Bengal
Council of Higher Secondary Education vs. I Dass 2007 (8)
SCC 242: 2007 (10 ) SCR 464 - referred to.
4.1. Section 8(1) enumerates the categories of
information which are exempted from disclosure under
C the provisions of the RTI Act. 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. [Para 19] [1074-8-
D C]
4.2. The term 'fiduciary' and 'fiduciary relationship'
refer to different capacities and relationship, involving a
common duty or obligation. The term 'fiduciary' refers to
E 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 transaction
where one person (beneficiary) places complete
F confidence in another person (fiduciary) in regar~ 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
G 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
H . thing, the fiduciary has to act in confidence and expected
CENTRAL BOARD OF SECONDARY EDUCATION v. 1037
ADITYA BANDOPADHYAY
not to disclose the thing or information to any third party. A
There are also certain relationships where both the
parties have to act in a fiduciary capacity treating the
other as the beneficiary. [Paras 20 and 21) [1074-D; 1077-
8-E]
B
Bristol and West Building Society vs. Mothew 1998 Ch.
1; Wolf vs. Superior Court 2003 (107) California Appeals, 4th
25 - referred to.
Black's Law Dictionary 7th Edition, p 640; American
Restatements (Trusts and Agency); Corpus Juris Secundum C
Vol. 36A 381; Words and Phrases, Permanent Edition Vol.
16A, 41 - referred to.
4.3. In a philosophical and very wide sense,
examining bodies can be said to act in a fiduciary D
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 E
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. That kind of fiduciary F
relationship is not found between the examining body
and the examinee, with reference to the evaluated
answer-books, that come into the custody of the
examining body. [Para 22) [1077-H; 1078-A-E]
G
4.4. 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 H
can be said to have successfully completed or passed
1038 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
s authority entrusted with public functions, is required to
act fairly, reasonably, uniformly and consistently for
public good and in public interest. It cannot be said that
the examining body is in a fiduciary relationship either
with reference to the examinee who participates in the
c examination and whose answer-books are evaluated by
the examining body. [Para 23] [1078-F-H; 1079-A-B; 1080-
A-B]
Bihar School Examination Board vs. Suresh Prasad
Sinha (2009) 8 SCC 483 - referred to.
D
4.5. Section 8 (1)(e) 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
E the relationship is fiduciary, the exemption would operate
in regard to giving access to the information 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
F duties of the fiduciary is to make thorough disclosure of
all relevant tacts 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, would be liable to make a full disclosure of the
evaluated answer-books to the examinee and at the same
G time, owe a duty to the examinee not to disclose the
answer-books to anyone else. 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
H access to any third party and would not operate as a bar
CENTRAL BOARD OF SECONDARY EDUCATION v. 1039
ADITYA BANDOPADHYAY
for the very person who wrote the answer-book, seeking A
inspection or disclosure of it. [Para 24] (1080-B-G]
4.6. An evaluated answer book of an examinee is a
combination of two different 'informations'. The first is the
answers written by the examinee and second is the 8
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 C
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 D
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 E
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 F
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 exaininee actually wants to know is the break-
up of marks given to him, that is how many marks were G
given by the examiner to each of his answers so that he
can assess how his 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 H
1040 SUPREME COURT REPORTS [2011] 11 S.C.R.
A answer book but in regard to the evaluation by the
examiner. [Para 25] [1080-H; 1081-A-F]
4.7. The examining body engages or employs
hundreds of examiners to do the evaluation of thousands
of answer books. The question is whether the
8
information relating to the 'evaluation' (that is assigning
of marks) is held by the examining body in a fiduciary
relationship. The submission that even if fiduciary
relationship does not exist with reference to the
examinee, it exists with reference to the examiner who
C evaluates the answer-books, 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
D 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 remuneration. In other
words the examining body is the 'principal' and the
E 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
F 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
G 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 h.ave any copy-right or proprietary right, or
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1041
ADITYA BANDOPADHYAY
confidentiality right in regard to the evaluation. Therefore, A
the examining body does not hold the evaluated answer
books in a fiduciary relationship, qua the examiner.
Therefore, an examining body does not hold the
evaluated answer-books in a fiduciary relationship. Not
being information available to an examining body in its B
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 available in respect of evaluated answer
books, the examining bodies will have to permit c
inspection sought by the examinees. [Para 26) [1081-G-
H; 1082-A-F] .
5.1. 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 D
information regarding evaluation ta 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, E
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, F
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 G
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, H
exempted from disclosure under Section 8(1 )(g) of RTI
1042 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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 would have to be given
B 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
c 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
D RTI Act. [Para 28) [1083-B-H; 1084-A]
5.2. 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
E 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-
F books would have to be maintained for any longer period
than required under the rules 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
G 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 would be entitled to such
information only if he seeks the information when it is
H available with the public authority. The power of the
CENTRAL BOARD OF SECONDARY EDUCATION v. 1043
ADITYA BANDOPADHYAY
Information Commission under Section 19(8) of the RTI A
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 B
regulations of the public authority. [Para 29] [1084•8-G]
5.4. Section 8(3) 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 C
relevant statutory rule or regulation of the public authority
relating to the preservaUori of records. Section 8(3)
proyides 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 D
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 E
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) F
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) would
cease to be available after twenty years in regard to
records which are required to be preserved for more than G
twenty years. Where any record or information is required
to be destroyed under the rules and regulations of a
public authority prior to twenty Y,ears, Section 8(3) would
not prevent destruction in accordance with the Rules.
H
1044 SUPREME COURT REPORTS (2011] 11 S.C.R.
A 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
B any public authority. [Para 30) [1085-A-G]
5.5. 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
C information under the control of public authorities. 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
D 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
E 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
F fulfilment and preservation of democratic ideals. [Para 33)
[1089-F-H; 1090-A-C]
5.6. When trying to ensure that the right to
information does not conflict with several other public
interests (which includes efficient operations of the
G 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
H made an attempt to do so. The enumeration of
CENTRAL BOARD OF SECONDARY EDUCATION v.1045
ADITYA BANDOPADHYAY
exemptions is more exhaustive than the enumeration of A
exemptions attempted in the earlier Act that is Section 8
of the Freedom to Information Act, 2002. The Courts and
Information Commissions enforcing the provisions of RTI
Act have to adopt a purposive construction, involving a
reasonable and balanced approach which harmonises B
the two objects of the Act, while interpreting Section 8
and the other provisions of the Act. [Para 34) [1090-D·F]
5.7. The RTI Act provides access to all information
that is available and existing. This is clear from a C
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 D
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 E
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, F
nor required to obtain and furnish any 'opinion' or
'advice' to an applicant. The reference to 'opinion' or
'advice' 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 G
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. [Para 35) [1090-G-H; 1091-
A-C] H
1046 SU-PREME COURT REPORTS [2011) 11 S.C.R.
A 5.8. 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
B power, clause (a) of section 19(8) refers to six specific
powers, to implement the provision 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
c 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
0
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 clauset. (b) and (c} of Sections
4(1) of the Act are published and disseminated, and are
E periodically updated as provided in sub-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
F transparency and accountability, citizens will be able to
access relevant information and avoid unnecessary
applications for information under the Act. [Para 36] [1091-
F-H; 1092-A-F]
G 5.9. 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
H to light the necessary information under clause (b) of
CENTRAL BOARD OF SECONDARY EDUCATION v. 1047
ADITYA BANDOPADHYAY
Section 4(1) which relates to securing transparency and A
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)), equal importance
and emphasis are given to other public interests (like B
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 c
accountability in the functioning of public authorities and
eradication of corruption) would be counter-productive
as it would adversely affect the efficiency of the
administration and result in the executive getting bogged
down with the non-productive work of collecting and D
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. E
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.
[Para 37) [1092-G-H; 1093-A-F] F
State of Uttar Pradesh v. Raj Narain (1975) 4 SCC
428:1975 (3) SCR 333; Dinesh Trivedi v. Union of India
(1997) 4 SCC 306:1997 (3) SCR 93; People's Union for Civil
Liberties v. Union of India (2004) 2 SCC 476: 2004 (1) SCR G
232 - referred to ..
Case Law Reference:
1984 (4) sec 21 Referred to. Para 6
H
1048 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 2004 (3) Suppl. SCR 372 Referred to. Para 6
2004 (13) sec 383 Referred to. Para 6
2001 (1) sec 603 Referred to. Para 6
2007 (10) SCR 464 Referred to. Para 6
B
1975 (3) SCR 333 Referred to. Para 10
1997 (3) SCR 93 Referred to. Para 10
2004 (1) SCR 232 Referred to. Para 10
c
CIVIL APPELALTE JURISDICTION : Civil Appeal No.
6454 of 2011.
From the Judgment & Order datd 5.2.2009 of the Higt
Court at Calcutta in Writ Petition 18189 (W) of 2008.
D
WITH
C.A. Nos. 6456, 6457-6458, 6459, 6461, 6462, 6464, 6465-
6468 of 2011.
E Parag P. Tripathi, ASG, Bhaskar P. Gupta, Mahabir Singh,
P.K. Goswami, Tapash Ray, Dr. Rajiv Dhawan, Tara Chandra
Sharma, Neelam Sharma, Rupesh Kumar, Ajay Sharma, Pijush
K. Roy, Mithilesh Kr. Singh, Ranajit Chatterjee, Shankar Divate,
Anuj Bhandari, Pramod Dayal, Nikunj Dayal, Rakesh Agarwal,
F Pulkit Agarwal, Payal Dayal, Parthiv Goswami, S. Hariharan,
Rajiv Mehta, Saurendra Betal, D.M. Nargolkar, LC. Agrawala,
F.I. Choudhary, Rameshwar Prasad Goyal, Abhijit Sengupta,
B.P. Yadav, Sampa Sengupta Ray, Anmia Kujur, Ranjan
Mukherjee, Azem H. Laskar, Divya Jyoti Jaipuriar, Jyoti
G Mendiratta, Navin Prakash, Sunil Kumar Verma, Rekha Pandey
for the appearing parties.
The Judgment of the Court was delivered by
R.V.RAVEENDRAN, J. 1. Leave granted. For
H convenience, we will refer to the facts of the first case.
CENTRAL BOARD OF SECONDARY EDUCATION v.1049
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
2. The first respondent appeared for the Secondary A
School Examination, 2008 conducted by the Central Board of
Secondary Education (for short '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 B
valuation had resulted in low marks. Therefore he made an
application for lnspe<;:tion 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 C
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.
D
(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.
E
(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." F
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- G
sheets, in regard to the examinations held by it was illegal,
unreasonable and violative of the provisions of the Constitution
of India; (b) for a direction to CBSE to appoint an independ~nt
examiner fur re-evaluating his answer-books and issue a fresh
marks card on the basis of re-evaluation; (c) for a direction to
H,
1050 SUPREME COURT REPORTS (2011] 11 S.C.R
A 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
B 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
C 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:
D "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
E
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
F
and to the award list and whether the 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.
G {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
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1051
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
payment of fee as prescribed by the Board from time to A
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. 8
)()()()(
(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 C
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.
D
(viii) The marks, on verification will be revised upward or
downwan;l, as per the actual marks obtained by the
candidate in his/her answer book.
)()()()(
E
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." F
(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 G
as many as 60 to 65 lakhs of answer-books; that as per
Examination Bye-law No.62, it maintains the answer 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
:e-evaluation of answer books or inspection thereof, it will H
1052 SUPREME COURT REPORTS [2011] 11 S.C.R
A 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 lhe All India Pre-Medical
Test, All India Engineering Entrance Examination and Jawahar
B 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
c 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
0 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
E 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
F 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 different schools
in different categories. After assessing the papers from
G 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
H instructions for the guidance of the moderators in order to
CENTRAL BOARD OF SECONDARY EDUCATION v.1053
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
ensure uniform criteria for assessment. A
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 B
as to conceal their identity. The work of allotment of
fictitious roil 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 C
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 D
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 E
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.
F
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 G
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 H
1054 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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
c about the state or territory it 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.
D
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
E 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.
F 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
G
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
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1055
ADITYA BANDOPADHYAY {R.V. RAVEENDRAN, J.)
aspects of the answers has been trebled in order to detect A
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.
B
This Committee reviews t~e 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 C
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 D
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 E
and made the entire process as foolproof as possible and
therefore denial of re"evaluation or 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 F
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 G
x any University or Board of Secondary Education, being a
document, manuscript record, and opinion' fell within the
fofinition of "information" as defined in section 2(f) of the RTI
\ct. It held that the provisions of the RTI Act should be
nterpreted in a manner which would lead towards dissemination H
1056 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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.
B 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. Feeling aggrieved by the direction to
c 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-Jaw 61 (4), which provided that no
D 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
E 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
F Education vs. S [2007 (1) SCC 603] and Secretary, West
Bengal Council of Higher Secondary Education vs. I Dass
[2007 (8) sec 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
G 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 books) in a
fiduciary relationship and therefore exempted under section
8(1 )(e) of the RTI Act.
CENTRAL BOARD OF SECONDARY EDUCATION v. 1057
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
7. The examinees and the Central Information Commission A
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 B
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 c
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 D
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.
8. On the contentions urged, the following questions arise E
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 F
certified copies thereof?
(ii) Whether the decisions of this court in Maharashtra
State Board of Secondary Education [1984 (4)
sec 27] and other cases referred to above, in any
way affect or interfere with the right of an examinee G
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 H
1058 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 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
B
thereof, whether such right is subject to any
limitations, conditions or safeguards?
Relevant Legal Provisions
c 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 Act. RTI Act was enacted in order
to ensure smoother, greater and more effective access to
information and provide an effective framework for effectuating
0 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
E 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
F incidental thereto.
Whereas the Constitution of India has established
democratic Republic;
And whereas democracy requires an informed citizenry
G 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;
H
CENTRAL BOARD OF SECONDARY EDUCATION v. 1059
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
And whereas revelation of information in actual practice A
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;
B
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 C
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 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 D
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 E
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) F
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, G
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
H
1060 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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;
B (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;
c
(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;
D (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
E 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;
F (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
G 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;
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1061
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
0) information which relates to personal information the A
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 B
that the larger p~blic 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 C
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 D
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 E
happened twenty years before 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 F
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 G
section 8, a request for information may be rejected if such a
request for providing access would involve an infringement of
copyright. Section 1O deals with severability of exempted
information and sub-section (1) thereof is extracted below:
H
1062 SUPREME COURT REPORTS (2011] 11 S.C.R.
A "(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
B 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
C (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
D 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
E request and of the fact that the Central Public Information
Officer or State Public Information Officer, as the case may
be, intends to 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
F 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
G 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 0) of section 2 of the
H RTI Act are extracted below:
CENTRAL BOARD OF SECONDARY EDUCATION v.1063
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
"(f) "information" means any material in any form, including A
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 B
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; c
(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 D
Government, and includes any-
(i) body oWhed, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate E
Government;
(i) "record" includes-
(a) any document, manuscript and file; F
(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 G
(d) any other material produced by a computer or any other
device;
m"right to information" means the right to information H
1064 SUPREME COURT REPORTS (2011] 11 S.C.R.
A 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
B 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
c 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
D is extracted below:
''The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in the Official
Secrets Act, 1923 (19 of 19231, and any other law for the
E 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)
F 4 SCC 428, this Court observed:
"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
G 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,
H is a factor which should make one wary, when secrecy is
CENTRAL BOARD OF SECONDARY EDUCATION v. 1065
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
claimed for transactions which can, at any rate, have no A
repercussion on public security."
(emphasis supplied)
In Dinesh Trivedi v. Union of India - (1997) 4 SCC 306,
this Court held: B
"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 C
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 o
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 E
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 F
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 G
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
H
1066 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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 and expression" as contained
8
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) .
c
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
D 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
E 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
F provisions of this Act all citizens shall have the right to
information. The term 'right to information' is defined in section
20) as the right to information accessible 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
G 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 corr.uption
and hold the Government and their instrumentalities accountable
to the citizens, by providing them access to information
H regarding functioning of every public authority. Certain
-,
CENTRAL BOARD OF SECONDARY EDUCATION v. 1067
ADITYA BANDOPADHYAY [RV. RAVEENDRAN, J.]
safeguards have been built into the Act so that the revelation A
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 B
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 C
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). D
(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 E
[however, in regard to the information exempted
under clauses (d) and (e), the competent authority,
and in regard to the information excluded under
clause 0), Central Public Information Officer/State
Public Information Officer/the Appellate Authority, F
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 G
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 H
1068 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
8
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. Resultantly,
unless the examining bodies are able to demonstrate that the
evaluated answer-books fall un~er any of the categories of
C exempted 'information' enumerated in clauses (a) to 0) 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.
D
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
E 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
F RTI Act.
Re : Question (ii)
15. In Maharashtra State Board, this Court was
considering whether denial of re-evaluation of answer-books or
G denial of disclosure by way of inspection of answer books, to
an examinee, under Rule 104(1) and (3) of 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
H no re-evaluation of the answer books shall be done and on an
CENTRAL BOARD OF SECONDARY EDUCATION v. 1069
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
application of any candidate verification will be restricted to A
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 B
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 C
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 D
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 E
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 F
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 G
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 ... and
there is no scope for interference by the Court unless the
particular provision impugned before it can be said to
H
1070 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 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.
B
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
c 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
D 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
E 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
F 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
G 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 student is entitled to fair play in
examination and receive marks matching his performance, this
court held:
H "What constitutes fair play deoends uoon the facts and
CENTRAL BOARD OF SECONDARY EDUCATION v.1071
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
circumstances relating to each particular given situation. A
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 B
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 c
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 D
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, E
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 ....
F
This Court concluded that if inspection and verificatio.n 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 G
of the enormity of the labour and time involved in the process.
This court concluded :
"... the Court should be extremely reluctant to substitute its
own views as to what is wise, prudent and proper in
H
1072 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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
c · 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
D 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
E 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
F 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-
evaluation and inspection contained in Bye-law No.61, are akin
to Rule 104 considered in Maharashtra State Board. As a
G 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
H
CENTRAL BOARD OF SECONDARY EDUCATION v. 1073
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
totaling of marks for each question and marks have been A
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.
B
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- C
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 D
them 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. E
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 F
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 G
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.
H
1074 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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 examining bodies rely upon clause (e) of section
8(1) which provides that there shall be no obligation on any
8
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
C 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
D different capacities and relationship, involving a common duty
or obligation.
(20.1) Black's Law Dictionary (7th Edition, Page 640)
defines 'fiduciary relationship' thus:
E "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-prindpal, and attorney-
client - require the highest. duty of care. Fiduciary
F 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
G 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. n
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1075
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
(20.2) The American Restatements (Trusts and Agency) A
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 :
8
"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 C
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. D
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 E
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,
F
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, G
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 H
1076 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B occupies a position of peculiar confidence towards
another. It refers to integrity and 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
c 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
D
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
E 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
F 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
- G
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
- H
confidence, can take no advantage from his acts relating
CENTRAL BOARD OF SECONDARY EDUCATION v. 1077
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
to the interests of the qther party without the· latter's A
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 8
in the person owing or discharging the duty. The term 'fiduciary
relationship' is used to describe a situation or 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 C
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 D
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- E
a-vis another partner and an employer vis-a-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 F
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 .G
disclosed only 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
H
1078 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 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)
B 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,
c a guardian with reference to a minor/physically/infirm/mentally
challenged, a parent with reference to a child, a lawyer or a
ch.artered 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
0 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
E do not find that kind of fiduciary relationship between 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
F 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
G 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
H act fairly, reasonably, uniformly and consistently for public good
CENTRAL BOARD OF SECONDARY EDUCATION v. 1079
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
and in public interest. This Court has explained the role of an A
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: B
"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
st'Jtutory ana partly administrative. When the Examination C
Board conducts an examination in discharge of its
statutory function, it does not offer its "services" to any
candidate. Nor does a 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 D
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 E
course of educ~tion; 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 F
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 G
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
" H
1080 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
8
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
C fiduciary relationship. This would only mean> that ev' if the
relationship is fiduciary, the exemption would operate in regard
to giving access to the information held in fiduciary relationship,
to third parties. There is no question of the fiduciary withholding
information relating to the beneficiary, from the beneficiary
D 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
E 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
F 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
G 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 second is the marks/
H
CENTRAL BOARD OF SECONDARY EDUCATION v. 1081
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
assessment by the examiner. When an examinee seeks A
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 B
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 c
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- 0
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
E
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 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 F
information is exempted or not, is not in regard to ttie 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 G
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 H
TU82 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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 remuneration. In other words the
c 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
0
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
E 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
F 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
G 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
available in respect of evaluated answer books, the examining
bodies will have to permit inspection sought by the examinees.
H
CENTRAL BOARD OF SECONDARY EDUCATiON v. 1083
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
Re : Question (iv) A
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
8
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, C
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 · D
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 E
examiners are therefore exempted from disclosure under
section 8(1)(g) of RTI Acf, 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 F
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 G
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. H
1084 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 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/
B 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 and regulations of
C 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
0
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
E 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
F 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.
G
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 the part of every public
authority to maintain the information for a minimum period of
H twenty years and make it available whenever an application was
CENTRAL BOARD OF SECONDARY EDUCATION v.1085
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
made in that behalf. This contention is based on a complete A
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 B
the public autliority 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 c
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
0
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, E
under clauses (b), (d) to (h) and 0) of section 8(1) will cease to
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 F
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 G
authority.
31. The effect of the provisions and scheme of the RTI Act
is to divide 'information' into the three categories. They are :
H
1086 SUPREME COURT REPORTS [2011] 11 S.C.R.
A (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).
B
(ii) Other information held by public authqrity (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
c 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
0 scope of RTI Act. Section 3 of RTI Act gives every citizen, the
right to 'information' held 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
E 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.
F 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
G authority shall-
(a) xxxxxx
(b) publish within one hundred and twenty days from the
enactment of this Act,-
H
CENTRAL BOARD OF SECONDARY EDUCATION v. 1087
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
(i) the particulars of its organisation, functions and A
duties;
(ii) the powers and duties of its officers and
employees;
(iii) the procedure followed in the decision making B
process, including channels of supervision and
accountability;
(iv) the norms set by it for the discharge of its
functions; · c
(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 D.
are held by it or under its control;
(vii) the particulars of any arrangement that exists
for consultation with, or representation by, the
members of the public in relation to the formulation E
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 F
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; G
(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, H
1088 SUPREME COURT REPORTS [2011] 11 S.C.R.
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;
B
(xiii) particulars of recipients of concessions,
permits or authorisations granted by it;
(xiv) details in respect of the information, available
c 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;
D
(xvi) the names, designations and other particulars
of the Public Information Officers;
(xvii) such other·information as may be prescribed;
E 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)
. F
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
G 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
H to the use of this Act to obtain information.
CENTRAL BOARD OF SECONDARY EDUCATION v.1089
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
(3) F'or the purposes of sub-section (1), evety information A
shall be disseminated widely and iri 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 8
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 C
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 D
boards, newspapers, public announcements, media
broadcasts, the internet or any other means, including
inspection of offices of any public authority."
(emphasis supplied) E
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 F
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. The other is G
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 H
1090 . SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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
C 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
D 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 Commissions enforcing the
provisions of RTI Act have to adopt a purposive construction,
E 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
F 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 m
of section 2 of the Act. If a public authority has any information
G 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
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1091
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
Act does not cast an obligation upon the public authority, to A
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 applicapt, nor required to obtain and furnish any B
'opinion' or 'advice' to an applicant. The reference to 'opinion'
or 'advice' 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 c
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 D
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 E
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. F
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 G
require a public 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 H
1092 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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
c 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
D 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-sections (3) and
(4) of section 4 of the Act. If the 'information' enumerated in
E 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.
F
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
G 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
H is information other than those enumerated in section 4(1}(b)
CENTRAL BOARD OF SECONDARY EDUCATION v. 1093
ADITYA BANDOPADHYAY [R.V. RAVEENDRAN, J.]
and (c) of the Act), equal importance and emphasis are given A
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 B
in the functioning of public authorities and 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 c
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 0
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 E
cost of their normal and regular duties.
Conclusion
38. In view of the foregoing, the order of the High Court F
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 Act and the
safeguards and conditions subject to which 'information' should
be furnished. The appeals are disposed of accordingly.
F
N.J. Appeals disposed. of.
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