Text
Subject wise decisions of Supreme Court
* Please click on Case Title for Details
Sections Subject Court Name Cases
Central Board of Secondary education & Anr V/s Aditya
Bandopadhyay & Ors.
Section
Definition of Information Supreme Court Khanapuram Gandaiah V/S Administrative Officer and Ors.
2 (f)
ThalappalamSer Coop bank Ltd and others V/S State of Kerala and
ootthheerrss
Section ThalappalamSer Coop bank Ltd and others V/S State of Kerala and
Definition of Public authority Supreme Court
2 (h) others
"Security, Strategic, Scientific or"
Section 8(1)(a) Supreme court Reserve Bank of India V/S Jayantilal N Mistry
Economic interests of the state
The Institute of Chartered Accountants of india V/S Shaunak H Satya
Section & Ors.
Commercial Confidence Supreme Court
8 (1) (d)
Reserve Bank of India V/S Jayantilal N Mistry
Central Board of Secondary education &Anr V/s Aditya
Bandopadhyay & Ors.
Section
Fiduciary Relationship Supreme Court
8 (1) (e) Union Public service Commission V/S Gourhari Kamila
Reserve Bank of India V/S Jayantilal N Mistry
Sections Subject Court Name Cases
Central Board of Secondary education & Anr V/s Aditya
Bandopadhyay & Ors.
Section
Danger to Life or Physical Safety Supreme Court
8 (1) (g)
Bihar Public Service Commission V/S Saiyed Hussain Abbas Rizwi &
Anr.
Girish Ramchandra Deshpande V/S Central Information commission
& Ors.
Bihar Public Service Commission V/S Saiyed Hussain Abbas Rizwi &
Anr.
Section
Personal Information Supreme Court
8 (1) (j) R K Jain V/S Union of India and Anr.
ThalappalamSer Coop bank Ltd and others V/S State of Kerala and
ootthheerrss
Canara Bank Rep by its Deputy Gen Manager V/s C S shyam & Anr
Central Board of Secondary education &Anr V/s Aditya
Section 10 Severability Supreme Court
Bandopadhyay & Ors.
R K Jain V/s Union of India and Anr
Section 11 Third Party information Supreme Court
Union Public Service Commission Etc. V/S Angesh Kumar & Ors Etc
Section 20 Penalty Proceedings Supreme Court Manohar S/O ManikraoAnchule V/S State of Maharashtra & Anr.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. … Appellants
Vs.
Aditya Bandopadhyay & Ors. … Respondents
With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)
J U D G M E N T
"R.V.RAVEENDRAN, J."
"Leave granted. For convenience, we will refer to the facts of the first"
case.
"2. The first respondent appeared for the Secondary School Examination,"
2008 conducted by the Central Board of Secondary Education (for short
2
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed
with his marks. He thought that he had done well in the examination but his
answer-books were not properly valued and that improper valuation had
resulted in low marks. Therefore he made an application for inspection and
re-evaluation of his answer-books. CBSE rejected the said request by letter
dated 12.7.2008. The reasons for rejection were:
(i) The information sought was exempted under Section 8(1)(e) of RTI
Act since CBSE shared fiduciary relationship with its evaluators and
maintain confidentiality of both manner and method of evaluation.
(ii) The Examination Bye-laws of the Board provided that no candidate
shall claim or is entitled to re-evaluation of his answers or disclosure
or inspection of answer book(s) or other documents.
(iii) The larger public interest does not warrant the disclosure of such
information sought.
"(iv) The Central Information Commission, by its order dated 23.4.2007 in"
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such
disclosure.”
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008
before the Calcutta High Court and sought the following reliefs : (a) for a
declaration that the action of CBSE in excluding the provision of re-
"evaluation of answer-sheets, in regard to the examinations held by it was"
"illegal, unreasonable and violative of the provisions of the Constitution of"
3
India; (b) for a direction to CBSE to appoint an independent examiner for re-
evaluating his answer-books and issue a fresh marks card on the basis of re-
evaluation; (c) for a direction to CBSE to produce his answer-books in
regard to the 2008 Secondary School Examination so that they could be
properly reviewed and fresh marks card can be issued with re-evaluation
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and
for a direction to produce the answer-books into court for inspection by the
first respondent. The respondent contended that section 8(1)(e) of Right to
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not"
applicable and relied upon the provisions of the RTI Act to claim inspection.
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-"
evaluation and inspection of answer-books were impermissible and what
was permissible was only verification of marks. They relied upon the CBSE
"Examination Bye-law No.61, relevant portions of which are extracted"
below:
“61. Verification of marks obtained by a Candidate in a subject
(i) A candidate who has appeared at an examination conducted by the
Board may apply to the concerned Regional Officer of the Board for
verification of marks in any particular subject. The verification will be
restricted to checking whether all the answer's have been evaluated and
that there has been no mistake in the totalling of marks for each question
in that subject and that the marks have been transferred correctly on the
title page of the answer book and to the award list and whether the
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supplementary answer book(s) attached with the answer book mentioned
by the candidate are intact. No revaluation of the answer book or
supplementary answer book(s) shall be done.
(ii) Such an application must be made by the candidate within 21 days
from the date of the declaration of result for Main Examination and 15
days for Compartment Examination.
(iii) All such applications must be accompanied by payment of fee as
prescribed by the Board from time to time.
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her"
answers or disclosure or inspection of the answer book(s) or other
documents.
xxxx
(vi) In no case the verification of marks shall be done in the presence of
"the candidate or anyone else on his/her behalf, nor will the answer books"
be shown to him/her or his/her representative.
(vii) Verification of marks obtained by a candidate will be done by the
officials appointed by or with the approval of the Chairman.
"(viii) The marks, on verification will be revised upward or downward, as"
per the actual marks obtained by the candidate in his/her answer book.
xxxx
62. Maintenance of Answer Books
The answer books shall be maintained for a period of three months and
shall thereafter be disposed of in the manner as decided by the Chairman
from time to time.”
(emphasis supplied)
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated
schools across the country appear in class X and class XII examinations
conducted by it and this generates as many as 60 to 65 lakhs of answer-
"books; that as per Examination Bye-law No.62, it maintains the answer"
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books only for a period of three months after which they are disposed of. It
was submitted that if candidates were to be permitted to seek re-evaluation
"of answer books or inspection thereof, it will create confusion and chaos,"
subjecting its elaborate system of examinations to delay and disarray. It was
"stated that apart from class X and class XII examinations, CBSE also"
conducts several other examinations (including the All India Pre-Medical
"Test, All India Engineering Entrance Examination and Jawahar Navodaya"
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the
answer-books or grant inspection of answer-books or grant certified copies
"thereof, it would interfere with its effective and efficient functioning, and"
will also require huge additional staff and infrastructure. It was submitted
that the entire examination system and evaluation by CBSE is done in a
scientific and systemic manner designed to ensure and safeguard the high
academic standards and at each level utmost care was taken to achieve the
"object of excellence, keeping in view the interests of the students. CBSE"
referred to the following elaborate procedure for evaluation adopted by it :
“The examination papers are set by the teachers with at least 20 years of
teaching experience and proven integrity. Paper setters are normally
appointed from amongst academicians recommended by then Committee
of courses of the Board. Every paper setter is asked to set more than one
set of question papers which are moderated by a team of moderators who
are appointed from the academicians of the University or from amongst
the Senior Principals. The function of the moderation team is to ensure
correctness and consistency of different sets of question papers with the
curriculum and to assess the difficulty level to cater to the students of
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different schools in different categories. After assessing the papers from
"every point of view, the team of moderators gives a declaration whether"
"the whole syllabus is covered by a set of question papers, whether the"
distribution of difficulty level of all the sets is parallel and various other
aspects to ensure uniform standard. The Board also issues detailed
instructions for the guidance of the moderators in order to ensure uniform
criteria for assessment.
The evaluation system on the whole is well organized and fool-proof. All
the candidates are examined through question papers set by the same
paper setters. Their answer books are marked with fictitious roll numbers
so as to conceal their identity. The work of allotment of fictitious roll
number is carried out by a team working under a Chief Secrecy Officer
having full autonomy. The Chief Secrecy Officer and his team of
assistants are academicians drawn from the Universities and other
autonomous educational bodies not connected with the Board. The Chief
Secrecy Officer himself is usually a person of the rank of a University
professor. No official of the Board at the Central or Regional level is
associated with him in performance of the task assigned to him. The codes
of fictitious roll numbers and their sequences are generated by the Chief
Secrecy Officer himself on the basis of mathematical formula which
randomize the real roll numbers and are known only to him and his team.
This ensures complete secrecy about the identification of the answer book
"so much so, that even the Chairman, of the Board and the Controller of"
Examination of the Board do not have any information regarding the
fictitious roll numbers granted by the Chief Secrecy Officer and their real
counterpart numbers.
"At the evaluation stage, the Board ensures complete fairness and"
uniformity by providing a marking scheme which is uniformity applicable
to all the examiners in order to eliminate the chances of subjectivity.
These marking schemes are jointly prepared at the Headquarters of the
Board in Delhi by the Subject Experts of all the regions. The main purpose
of the marking scheme is to maintain uniformity in the evaluation of the
answer books.
The evaluation of the answer books in all major subjects including
"mathematics, science subjects is done in centralized “on the spot”"
evaluation centers where the examiners get answer book in interrupted
"serial orders. Also, the answer books are jumbled together as a result of"
"which the examiners, say in Bangalore may be marking the answer book"
"of a candidate who had his examination in Pondicherry, Goa, Andaman"
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka"
itself but he has no way of knowing exactly which answer book he is
examining. The answer books having been marked with fictitious roll
numbers give no clue to any examiner about the state or territory it
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belongs to. It cannot give any clue about the candidate’s school or centre
of examination. The examiner cannot have any inclination to do any
favour to a candidate because he is unable to decodify his roll number or
"to know as to which school, place or state or territory he belongs to."
The examiners check all the questions in the papers thoroughly under the
supervision of head examiner and award marks to the sub parts
individually not collectively. They take full precautions and due attention
is given while assessing an answer book to do justice to the candidate. Re-
evaluation is administratively impossible to be allowed in a Board where
lakhs of students take examination in multiple subjects.
There are strict instructions to the additional head examiners not to allow
any shoddy work in evaluation and not to issue more than 20-25 answer
books for evaluation to an examiner on a single day. The examiners are
practicing teachers who guard the interest of the candidates. There is no
ground to believe that they do unjust marking and deny the candidates
their due. It is true that in some cases totaling errors have been detected at
the stage of scrutiny or verification of marks. In order to minimize such
"errors and to further strengthen and to improve its system, from 1993"
checking of totals and other aspects of the answers has been trebled in
order to detect and eliminate all lurking errors.
The results of all the candidates are reviewed by the Results Committee
functioning at the Head Quarters. The Regional Officers are not the
number of this Committee. This Committee reviews the results of all the
regions and in case it decides to standardize the results in view of the
"results shown by the regions over the previous years, it adopts a uniform"
policy for the candidates of all the regions. No special policy is adopted
"for any region, unless there are some special reasons. This practice of"
awarding standardized marks in order to moderate the overall results is a
practice common to most of the Boards of Secondary Education. The
exact number of marks awarded for the purpose of standardization in
different subjects varies from year to year. The system is extremely
impersonalized and has no room for collusion infringement. It is in a word
a scientific system.”
CBSE submitted that the procedure evolved and adopted by it ensures
fairness and accuracy in evaluation of answer-books and made the entire
process as foolproof as possible and therefore denial of re-evaluation or
8
inspection or grant of copies cannot be considered to be denial of fair play or
unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed of the said
writ petition along with the connected writ petitions (relied by West Bengal
Board of Secondary Education and others) by a common judgment dated
5.2.2009. The High Court held that the evaluated answer-books of an
examinee writing a public examination conducted by statutory bodies like
"CBSE or any University or Board of Secondary Education, being a"
"‘document, manuscript record, and opinion’ fell within the definition of"
“information” as defined in section 2(f) of the RTI Act. It held that the
provisions of the RTI Act should be interpreted in a manner which would
lead towards dissemination of information rather than withholding the same;
"and in view of the right to information, the examining bodies were bound to"
provide inspection of evaluated answer books to the examinees.
Consequently it directed CBSE to grant inspection of the answer books to
the examinees who sought information. The High Court however rejected
"the prayer made by the examinees for re-evaluation of the answer-books, as"
that was not a relief that was available under RTI Act. RTI Act only
"provided a right to access information, but not for any consequential reliefs."
9
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this"
appeal by special leave.
6. Before us the CBSE contended that the High Court erred in (i)
"directing CBSE to permit inspection of the evaluated answer books, as that"
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),"
which provided that no candidate shall claim or be entitled to re-evaluation
of answer books or disclosure/inspection of answer books; (ii) holding that
"Bye-law 61(4) was not binding upon the examinees, in view of the"
"overriding effect of the provisions of the RTI Act, even though the validity"
of that bye-law had not been challenged; (iii) not following the decisions of
this court in Maharashtra State Board of Secondary Education vs. Paritosh
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar"
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan"
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC"
"603] and Secretary, West Bengal Council of Higher Secondary Education"
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a
right to inspect his answer book under section 3 of the RTI Act and the
examining bodies like CBSE were not exempted from disclosure of
information under section 8(1)(e) of the RTI Act. The appellants contended
"that they were holding the “information” (in this case, the evaluated answer"
10
books) in a fiduciary relationship and therefore exempted under section
8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission contended
that the object of the RTI Act is to ensure maximum disclosure of
information and minimum exemptions from disclosure; that an examining
"body does not hold the evaluated answer books, in any fiduciary relationship"
either with the student or the examiner; and that the information sought by
"any examinee by way of inspection of his answer books, will not fall under"
any of the exempted categories of information enumerated in section 8 of the
RTI Act. It was submitted that an examining body being a public authority
"holding the ‘information’, that is, the evaluated answer-books, and the"
inspection of answer-books sought by the examinee being exercise of ‘right
"to information’ as defined under the Act, the examinee as a citizen has the"
right to inspect the answer-books and take certified copies thereof. It was
"also submitted that having regard to section 22 of the RTI Act, the"
provisions of the said Act will have effect notwithstanding anything
"inconsistent in any law and will prevail over any rule, regulation or bye law"
of the examining body barring or prohibiting inspection of answer books.
11
"8. On the contentions urged, the following questions arise for our"
consideration :
(i) Whether an examinee’s right to information under the RTI Act
includes a right to inspect his evaluated answer books in a public
examination or taking certified copies thereof?
(ii) Whether the decisions of this court in Maharashtra State Board of
Secondary Education [1984 (4) SCC 27] and other cases referred to
"above, in any way affect or interfere with the right of an examinee"
seeking inspection of his answer books or seeking certified copies
thereof?
(iii) Whether an examining body holds the evaluated answer books “in a
fiduciary relationship” and consequently has no obligation to give
inspection of the evaluated answer books under section 8 (1)(e) of
RTI Act?
(iv) If the examinee is entitled to inspection of the evaluated answer books
"or seek certified copies thereof, whether such right is subject to any"
"limitations, conditions or safeguards?"
Relevant Legal Provisions
"9. To consider these questions, it is necessary to refer to the statement of"
"objects and reasons, the preamble and the relevant provisions of the RTI"
12
"Act. RTI Act was enacted in order to ensure smoother, greater and more"
effective access to information and provide an effective framework for
effectuating the right of information recognized under article 19 of the
Constitution. The preamble to the Act declares the object sought to be
achieved by the RTI Act thus:
“An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control
"of public authorities, in order to promote transparency and accountability"
"in the working of every public authority, the constitution of a Central"
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to contain
corruption and to hold Governments and their instrumentalities
accountable to the governed;
And whereas revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
"Governments, optimum use of limited fiscal resources and the"
preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while
preserving the paramountcy of the democratic ideal.”
Chapter II of the Act containing sections 3 to 11 deals with right to
information and obligations of public authorities. Section 3 provides for
"right to information and reads thus: “Subject to the provisions of this Act,"
all citizens shall have the right to information.” This section makes it clear
13
"that the RTI Act gives a right to a citizen to only access information, but not"
seek any consequential relief based on such information. Section 4 deals
with obligations of public authorities to maintain the records in the manner
provided and publish and disseminate the information in the manner
provided. Section 6 deals with requests for obtaining information. It
provides that applicant making a request for information shall not be
required to give any reason for requesting the information or any personal
details except those that may be necessary for contacting him. Section 8
deals with exemption from disclosure of information and is extracted in its
entirety:
“8. Exemption from disclosure of information -- (1) Notwithstanding
"anything contained in this Act, there shall be no obligation to give any"
"citizen,-"
"(a) information, disclosure of which would"
"prejudicially affect the sovereignty and integrity of India, the security,"
"strategic, scientific or economic interests of the State, relation with foreign"
State or lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the disclosure of which
may constitute contempt of court;
"(c) information, the disclosure of which would cause a"
breach of privilege of Parliament or the State Legislature;
"(d) information including commercial confidence, trade"
"secrets or intellectual property, the disclosure of which would harm the"
"competitive position of a third party, unless the competent authority is"
satisfied that larger public interest warrants the disclosure of such
information;
14
(e) information available to a person in his fiduciary
"relationship, unless the competent authority is satisfied that the larger"
public interest warrants the disclosure of such information;
(f) information received in confidence from foreign
Government;
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or identify the source of
information or assistance given in confidence for law enforcement or
security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
"the Council of Ministers, Secretaries and other officers:"
"Provided that the decisions of Council of Ministers, the reasons thereof,"
and the material on the basis of which the decisions were taken shall be
"made public after the decision has been taken, and the matter is complete,"
or over:
Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has no relationship to any public activity or
"interest, or which would cause unwarranted invasion of the privacy of the"
individual unless the Central Public Information Officer or the State
"Public Information Officer or the appellate authority, as the case may be,"
is satisfied that the larger public interest justifies the disclosure of such
information:
Provided that the information which cannot be denied to the Parliament or
a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in"
"accordance with sub-section (1), a public authority may allow access to"
"information, if public interest in disclosure outweighs the harm to the"
protected interests.
"(3) Subject to the provisions of clauses (a), (c) and (i)"
"of sub-section (1), any information relating to any occurrence, event or"
"matter which has taken place, occurred or happened twenty years before"
15
the date on which any request is made under secton 6 shall be provided to
any person making a request under that section:
Provided that where any question arises as to the date from which the said
"period of twenty years has to be computed, the decision of the Central"
"Government shall be final, subject to the usual appeals provided for in this"
Act.”
(emphasis supplied)
"Section 9 provides that without prejudice to the provisions of section 8, a"
request for information may be rejected if such a request for providing
access would involve an infringement of copyright. Section 10 deals with
severability of exempted information and sub-section (1) thereof is extracted
below:
“(1) Where a request for access to information is rejected on the ground
"that it is in relation to information which is exempt from disclosure, then,"
"notwithstanding anything contained in this Act, access may be provided to"
that part of the record which does not contain any information which is
exempt from disclosure under this Act and which can reasonably be
severed from any part that contains exempt information.”
Section 11 deals with third party information and sub-section (1) thereof is
extracted below:
“(1) Where a Central Public Information Officer or a State Public
"Information Officer, as the case may be, intends to disclose any"
"information or record, or part thereof on a request made under this Act,"
which relates to or has been supplied by a third party and has been treated
"as confidential by that third party, the Central Public Information Officer"
"or State Public Information Officer, as the case may be, shall, within five"
"days from the receipt of the request, give a written notice to such third"
party of the request and of the fact that the Central Public Information
"Officer or State Public Information Officer, as the case may be, intends to"
16
"disclose the information or record, or part thereof, and invite the third"
"party to make a submission in writing or orally, regarding whether the"
"information should be disclosed, and such submission of the third party"
shall be kept in view while taking a decision about disclosure of
information:
Provided that except in the case of trade or commercial secrets protected
"by law, disclosure may be allowed if the public interest in disclosure"
outweighs in importance any possible harm or injury to the interests of
such third party.”
"The definitions of information, public authority, record and right to"
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are"
extracted below:
"“(f) ""information"" means any material in any form, including records,"
"documents, memos, e-mails, opinions, advices, press releases, circulars,"
"orders, logbooks, contracts, reports, papers, samples, models, data material"
held in any electronic form and information relating to any private body
which can be accessed by a public authority under any other law for the
time being in force;
"(h) ""public authority"" means any authority or body or institution of self-"
government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
"(d) by notification issued or order made by the appropriate Government,"
and includes any-
"(i) body owned, controlled or substantially financed;"
"(ii) non-Government organisation substantially financed,"
directly or indirectly by funds provided by the appropriate Government;
17
"(i) ""record"" includes-"
"(a) any document, manuscript and file;"
"(b) any microfilm, microfiche and facsimile copy of a document;"
(c) any reproduction of image or images embodied in such microfilm
(whether enlarged or not); and
(d) any other material produced by a computer or any other device;
"(j) ""right to information"" means the right to information accessible under"
this Act which is held by or under the control of any public authority and
includes the right to-
"(i) inspection of work, documents, records;"
"(ii) taking notes, extracts or certified copies of documents or records;"
(iii) taking certified samples of material;
"(iv) obtaining information in the form of diskettes, floppies, tapes,"
video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other
device;
Section 22 provides for the Act to have overriding effect and is extracted
below:
“The provisions of this Act shall have effect notwithstanding anything
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of"
"1923), and any other law for the time being in force or in any instrument"
having effect by virtue of any law other than this Act.”
10. It will also be useful to refer to a few decisions of this Court which
considered the importance and scope of the right to information. In State of
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:"
18
"“In a government of responsibility like ours, where all the agents of the"
"public must be responsible for their conduct, there can but few secrets."
"The people of this country have a right to know every public act,"
"everything, that is done in a public way, by their public functionaries."
They are entitled to know the particulars of every public transaction in all
"its bearing. The right to know, which is derived from the concept of"
"freedom of speech, though not absolute, is a factor which should make one"
"wary, when secrecy is claimed for transactions which can, at any rate,"
have no repercussion on public security.”
(emphasis supplied)
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:"
"“In modern constitutional democracies, it is axiomatic that citizens have a"
"right to know about the affairs of the Government which, having been"
"elected by them, seeks to formulate sound policies of governance aimed at"
"their welfare. However, like all other rights, even this right has recognised"
"limitations; it is, by no means, absolute. ………………Implicit in this"
assertion is the proposition that in transaction which have serious
"repercussions on public security, secrecy can legitimately be claimed"
because it would then be in the public interest that such matters are not
publicly disclosed or disseminated.
To ensure the continued participation of the people in the democratic
"process, they must be kept informed of the vital decisions taken by the"
"Government and the basis thereof. Democracy, therefore, expects"
openness and openness is a concomitant of a free society. Sunlight is the
best disinfectant. But it is equally important to be alive to the dangers that
lie ahead. It is important to realise that undue popular pressure brought to
bear on decision-makers is Government can have frightening side-effects.
If every action taken by the political or executive functionary is
transformed into a public controversy and made subject to an enquiry to
"soothe popular sentiments, it will undoubtedly have a chilling effect on the"
independence of the decision-maker who may find it safer not to take any
decision. It will paralyse the entire system and bring it to a grinding halt.
So we have two conflicting situations almost enigmatic and we think the
answer is to maintain a fine balance which would serve public interest.”
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,"
this Court held that right of information is a facet of the freedom of “speech
19
and expression” as contained in Article 19(1)(a) of the Constitution of India
and such a right is subject to any reasonable restriction in the interest of the
security of the state and subject to exemptions and exceptions.
Re : Question (i)
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to
"any material in any form which includes records, documents, opinions,"
papers among several other enumerated items. The term ‘record’ is defined
"in section 2(i) of the said Act as including any document, manuscript or file"
among others. When a candidate participates in an examination and writes
his answers in an answer-book and submits it to the examining body for
"evaluation and declaration of the result, the answer-book is a document or"
record. When the answer-book is evaluated by an examiner appointed by the
"examining body, the evaluated answer-book becomes a record containing"
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also
an ‘information’ under the RTI Act.
12. Section 3 of RTI Act provides that subject to the provisions of this
Act all citizens shall have the right to information. The term ‘right to
information’ is defined in section 2(j) as the right to information accessible
20
under the Act which is held by or under the control of any public authority.
"Having regard to section 3, the citizens have the right to access to all"
information held by or under the control of any public authority except those
excluded or exempted under the Act. The object of the Act is to empower
the citizens to fight against corruption and hold the Government and their
"instrumentalities accountable to the citizens, by providing them access to"
information regarding functioning of every public authority. Certain
safeguards have been built into the Act so that the revelation of information
will not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidential and sensitive information. The RTI Act provides
access to information held by or under the control of public authorities and
not in regard to information held by any private person. The Act provides
the following exclusions by way of exemptions and exceptions (under
"sections 8, 9 and 24) in regard to information held by public authorities:"
(i) Exclusion of the Act in entirety under section 24 to intelligence and
security organizations specified in the Second Schedule even though
"they may be “public authorities”, (except in regard to information"
with reference to allegations of corruption and human rights
violations).
21
(ii) Exemption of the several categories of information enumerated in
section 8(1) of the Act which no public authority is under an
"obligation to give to any citizen, notwithstanding anything contained"
"in the Act [however, in regard to the information exempted under"
"clauses (d) and (e), the competent authority, and in regard to the"
"information excluded under clause (j), Central Public Information"
"Officer/State Public Information Officer/the Appellate Authority, may"
"direct disclosure of information, if larger public interest warrants or"
justifies the disclosure].
(iii) If any request for providing access to information involves an
"infringement of a copyright subsisting in a person other than the State,"
the Central/State Public Information Officer may reject the request
under section 9 of RTI Act.
"Having regard to the scheme of the RTI Act, the right of the citizens to"
"access any information held or under the control of any public authority,"
should be read in harmony with the exclusions/exemptions in the Act.
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)"
are neither security nor intelligence organisations and therefore the
exemption under section 24 will not apply to them. The disclosure of
information with reference to answer-books does not also involve
infringement of any copyright and therefore section 9 will not apply.
22
"Resultantly, unless the examining bodies are able to demonstrate that the"
evaluated answer-books fall under any of the categories of exempted
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,"
they will be bound to provide access to the information and any applicant
"can either inspect the document/record, take notes, extracts or obtain"
certified copies thereof.
14. The examining bodies contend that the evaluated answer-books are
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are"
‘information’ held in its fiduciary relationship. They fairly conceded that
evaluated answer-books will not fall under any other exemptions in sub-
section (1) of section 8. Every examinee will have the right to access his
"evaluated answer-books, by either inspecting them or take certified copies"
"thereof, unless the evaluated answer-books are found to be exempted under"
section 8(1)(e) of the RTI Act.
Re : Question (ii)
"15. In Maharashtra State Board, this Court was considering whether"
denial of re-evaluation of answer-books or denial of disclosure by way of
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of"
23
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was"
violative of principles of natural justice and violative of Articles 14 and 19
of the Constitution of India. Rule 104(1) provided that no re-evaluation of
the answer books shall be done and on an application of any candidate
verification will be restricted to checking whether all the answers have been
examined and that there is no mistake in the totalling of marks for each
question in that subject and transferring marks correctly on the first cover
page of the answer book. Rule 104(3) provided that no candidate shall claim
or be entitled to re-evaluation of his answer-books or inspection of answer-
books as they were treated as confidential. This Court while upholding the
validity of Rule 104(3) held as under :
“…. the “process of evaluation of answer papers or of subsequent
verification of marks” under Clause (3) of Regulation 104 does not attract
the principles of natural justice since no decision making process which
brings about adverse civil consequences to the examinees in involved. The
principles of natural justice cannot be extended beyond reasonable and
rational limits and cannot be carried to such absurd lengths as to make it
necessary that candidates who have taken a public examination should be
allowed to participate in the process of evaluation of their performances or
to verify the correctness of the evaluation made by the examiners by
themselves conducting an inspection of the answer-books and determining
whether there has been a proper and fair valuation of the answers by the
"examiners."""
So long as the body entrusted with the task of framing the rules or
"regulations acts within the scope of the authority conferred on it, in the"
sense that the rules or regulations made by it have a rational nexus with
"the object and purpose of the statute, the court should not concern itself"
with the wisdom or efficaciousness of such rules or regulations…. The
Legislature and its delegate are the sole repositories of the power to decide
what policy should be pursued in relation to matters covered by the Act …
24
and there is no scope for interference by the Court unless the particular
provision impugned before it can be said to suffer from any legal
"infirmity, in the sense of its being wholly beyond the scope of the"
regulation making power or its being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations
imposed by the Constitution.
"It was perfectly within the competence of the Board, rather it was its plain"
"duty, to apply its mind and decide as a matter of policy relating to the"
conduct of the examination as to whether disclosure and inspection of the
"answer books should be allowed to the candidates, whether and to what"
extent verification of the result should be permitted after the results have
already been announced and whether any right to claim revaluation of the
answer books should be recognised or provided for. All these are
undoubtedly matters which have an intimate nexus with the objects and
"purposes of the enactment and are, therefore, with in the ambit of the"
general power to make regulations….”
This Court held that Regulation 104(3) cannot be held to be unreasonable
"merely because in certain stray instances, errors or irregularities had gone"
unnoticed even after verification of the concerned answer books according
to the existing procedure and it was only after further scrutiny made either
on orders of the court or in the wake of contentions raised in the petitions
"filed before a court, that such errors or irregularities were ultimately"
discovered. This court reiterated the view that “the test of reasonableness is
not applied in vacuum but in the context of life’s realities” and concluded
"that realistically and practically, providing all the candidates inspection of"
their answer books or re-evaluation of the answer books in the presence of
the candidates would not be feasible. Dealing with the contention that every
25
student is entitled to fair play in examination and receive marks matching his
"performance, this court held :"
“What constitutes fair play depends upon the facts and circumstances
relating to each particular given situation. If it is found that every possible
precaution has been taken and all necessary safeguards provided to ensure
that the answer books inclusive of supplements are kept in safe custody so
as to eliminate the danger of their being tampered with and that the
evaluation is done by the examiners applying uniform standards with
checks and crosschecks at different stages and that measures for detection
"of malpractice, etc. have also been effectively adopted, in such cases it"
"will not be correct on the part of the Courts to strike down, the provision"
prohibiting revaluation on the ground that it violates the rules of fair play.
It appears that the procedure evolved by the Board for ensuring fairness
and accuracy in evaluation of the answer books has made the system as
fool proof as can be possible and is entirely satisfactory. The Board is a
very responsible body. The candidates have taken the examination with
full awareness of the provisions contained in the Regulations and in the
declaration made in the form of application for admission to the
examination they have solemnly stated that they fully agree to abide by the
"regulations issued by the Board. In the circumstances, when we find that"
"all safeguards against errors and malpractices have been provided for,"
there cannot be said to be any denial of fair play to the examinees by
reason of the prohibition against asking for revaluation…. “
This Court concluded that if inspection and verification in the presence of
"the candidates, or revaluation, have to be allowed as of right, it may lead to"
"gross and indefinite uncertainty, particularly in regard to the relative ranking"
"etc. of the candidate, besides leading to utter confusion on account of the"
enormity of the labour and time involved in the process. This court
concluded :
26
“… the Court should be extremely reluctant to substitute its own views as
"to what is wise, prudent and proper in relation to academic matters in"
preference to those formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working of educational
institutions and the departments controlling them. It will be wholly wrong
for the court to make a pedantic and purely idealistic approach to the
"problems of this nature, isolated from the actual realities and grass root"
problems involved in the working of the system and unmindful of the
consequences which would emanate if a purely idealistic view as opposed
to a pragmatic one were to be propounded.”
16. The above principles laid down in Maharashtra State Board have
"been followed and reiterated in several decisions of this Court, some of"
which are referred to in para (6) above. But the principles laid down in
decisions such as Maharashtra State Board depend upon the provisions of
the rules and regulations of the examining body. If the rules and regulations
"of the examining body provide for re-evaluation, inspection or disclosure of"
"the answer-books, then none of the principles in Maharashtra State Board or"
"other decisions following it, will apply or be relevant. There has been a"
gradual change in trend with several examining bodies permitting inspection
and disclosure of the answer-books.
17. It is thus now well settled that a provision barring inspection or
disclosure of the answer-books or re-evaluation of the answer-books and
restricting the remedy of the candidates only to re-totalling is valid and
"binding on the examinee. In the case of CBSE, the provisions barring re-"
27
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104"
considered in Maharashtra State Board. As a consequence if an examination
is governed only by the rules and regulations of the examining body which
"bar inspection, disclosure or re-evaluation, the examinee will be entitled"
only for re-totalling by checking whether all the answers have been
evaluated and further checking whether there is no mistake in totaling of
marks for each question and marks have been transferred correctly to the
"title (abstract) page. The position may however be different, if there is a"
"superior statutory right entitling the examinee, as a citizen to seek access to"
"the answer books, as information."
"18. In these cases, the High Court has rightly denied the prayer for re-"
evaluation of answer-books sought by the candidates in view of the bar
contained in the rules and regulations of the examining bodies. It is also not
a relief available under the RTI Act. Therefore the question whether re-
"evaluation should be permitted or not, does not arise for our consideration."
What arises for consideration is the question whether the examinee is
entitled to inspect his evaluated answer-books or take certified copies
"thereof. This right is claimed by the students, not with reference to the rules"
"or bye-laws of examining bodies, but under the RTI Act which enables them"
28
and entitles them to have access to the answer-books as ‘information’ and
inspect them and take certified copies thereof. Section 22 of RTI Act
"provides that the provisions of the said Act will have effect, notwithstanding"
anything inconsistent therewith contained in any other law for the time being
in force. Therefore the provisions of the RTI Act will prevail over the
provisions of the bye-laws/rules of the examining bodies in regard to
"examinations. As a result, unless the examining body is able to demonstrate"
that the answer-books fall under the exempted category of information
"described in clause (e) of section 8(1) of RTI Act, the examining body will"
be bound to provide access to an examinee to inspect and take copies of his
"evaluated answer-books, even if such inspection or taking copies is barred"
under the rules/bye-laws of the examining body governing the examinations.
"Therefore, the decision of this Court in Maharashtra State Board (supra)"
"and the subsequent decisions following the same, will not affect or interfere"
with the right of the examinee seeking inspection of answer-books or taking
certified copies thereof.
Re : Question (iii)
19. Section 8(1) enumerates the categories of information which are
exempted from disclosure under the provisions of the RTI Act. The
29
examining bodies rely upon clause (e) of section 8(1) which provides that
"there shall be no obligation on any public authority to give any citizen,"
information available to it in its fiduciary relationship. This exemption is
subject to the condition that if the competent authority (as defined in section
2(e) of RTI Act) is satisfied that the larger public interest warrants the
"disclosure of such information, the information will have to be disclosed."
Therefore the question is whether the examining body holds the evaluated
answer-books in its fiduciary relationship.
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different
"capacities and relationship, involving a common duty or obligation."
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary"
relationship’ thus:
“A relationship in which one person is under a duty to act for the benefit
of the other on matters within the scope of the relationship. Fiduciary
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,"
and attorney-client – require the highest duty of care. Fiduciary
relationships usually arise in one of four situations : (1) when one person
"places trust in the faithful integrity of another, who as a result gains"
"superiority or influence over the first, (2) when one person assumes"
"control and responsibility over another, (3) when one person has a duty to"
act for or give advice to another on matters falling within the scope of the
"relationship, or (4) when there is a specific relationship that has"
"traditionally been recognized as involving fiduciary duties, as with a"
lawyer and a client or a stockbroker and a customer.”
30
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as
one whose intention is to act for the benefit of another as to matters relevant
to the relation between them. The Corpus Juris Secundum (Vol. 36A page
381) attempts to define fiduciary thus :
“A general definition of the word which is sufficiently comprehensive to
"embrace all cases cannot well be given. The term is derived from the civil,"
"or Roman, law. It connotes the idea of trust or confidence, contemplates"
"good faith, rather than legal obligation, as the basis of the transaction,"
"refers to the integrity, the fidelity, of the party trusted, rather than his"
"credit or ability, and has been held to apply to all persons who occupy a"
"position of peculiar confidence toward others, and to include those"
informal relations which exist whenever one party trusts and relies on
"another, as well as technical fiduciary relations."
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for"
"another, a trustee, a person holding the character of a trustee, or a"
"character analogous to that of a trustee, with respect to the trust and"
confidence involved in it and the scrupulous good faith and candor which
"it requires; a person having the duty, created by his undertaking, to act"
primarily for another’s benefit in matters connected with such
"undertaking. Also more specifically, in a statute, a guardian, trustee,"
"executor, administrator, receiver, conservator, or any person acting in any"
"fiduciary capacity for any person, trust, or estate. Some examples of what,"
"in particular connections, the term has been held to include and not to"
include are set out in the note.”
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines"
‘fiducial relation’ thus :
“There is a technical distinction between a ‘fiducial relation’ which is
"more correctly applicable to legal relationships between parties, such as"
"guardian and ward, administrator and heirs, and other similar"
"relationships, and ‘confidential relation’ which includes the legal"
"relationships, and also every other relationship wherein confidence is"
rightly reposed and is exercised.
"Generally, the term ‘fiduciary’ applies to any person who occupies a"
position of peculiar confidence towards another. It refers to integrity and
31
"fidelity. It contemplates fair dealing and good faith, rather than legal"
"obligation, as the basis of the transaction. The term includes those"
informal relations which exist whenever one party trusts and relies upon
"another, as well as technical fiduciary relations.”"
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term
fiduciary was defined thus :
“A fiduciary is someone who has undertaken to act for and on behalf of
another in a particular matter in circumstances which give rise to a
relationship of trust and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;
he must not make a profit out of his trust; he must not place himself in a
position where his duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without the informed
consent of his principal.”
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the"
California Court of Appeals defined fiduciary relationship as under :
“any relationship existing between the parties to the transaction where one
of the parties is duty bound to act with utmost good faith for the benefit of
the other party. Such a relationship ordinarily arises where confidence is
"reposed by one person in the integrity of another, and in such a relation the"
"party in whom the confidence is reposed, if he voluntarily accepts or"
"assumes to accept the confidence, can take no advantage from his acts"
relating to the interests of the other party without the latter’s knowledge
and consent.”
21. The term ‘fiduciary’ refers to a person having a duty to act for the
"benefit of another, showing good faith and condour, where such other person"
reposes trust and special confidence in the person owing or discharging the
duty. The term ‘fiduciary relationship’ is used to describe a situation or
32
transaction where one person (beneficiary) places complete confidence in
"another person (fiduciary) in regard to his affairs, business or transaction/s."
The term also refers to a person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in confidence and for the
"benefit and advantage of the beneficiary, and use good faith and fairness in"
dealing with the beneficiary or the things belonging to the beneficiary. If the
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust"
"or to execute certain acts in regard to or with reference to the entrusted thing,"
the fiduciary has to act in confidence and expected not to disclose the thing
or information to any third party. There are also certain relationships where
both the parties have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-à-vis another partner and
an employer vis-à-vis employee. An employee who comes into possession
of business or trade secrets or confidential information relating to the
"employer in the course of his employment, is expected to act as a fiduciary"
"and cannot disclose it to others. Similarly, if on the request of the employer"
"or official superior or the head of a department, an employee furnishes his"
"personal details and information, to be retained in confidence, the employer,"
the official superior or departmental head is expected to hold such personal
"information in confidence as a fiduciary, to be made use of or disclosed only"
33
if the employee’s conduct or acts are found to be prejudicial to the employer.
"22. In a philosophical and very wide sense, examining bodies can be said"
"to act in a fiduciary capacity, with reference to students who participate in an"
"examination, as a government does while governing its citizens or as the"
present generation does with reference to the future generation while
preserving the environment. But the words ‘information available to a
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in
"its normal and well recognized sense, that is to refer to persons who act in a"
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries"
who are to be expected to be protected or benefited by the actions of the
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian"
"with reference to a minor/physically/infirm/mentally challenged, a parent"
"with reference to a child, a lawyer or a chartered accountant with reference"
"to a client, a doctor or nurse with reference to a patient, an agent with"
"reference to a principal, a partner with reference to another partner, a"
"director of a company with reference to a share-holder, an executor with"
"reference to a legatee, a receiver with reference to the parties to a lis, an"
employer with reference to the confidential information relating to the
"employee, and an employee with reference to business dealings/transaction"
of the employer. We do not find that kind of fiduciary relationship between
34
"the examining body and the examinee, with reference to the evaluated"
"answer-books, that come into the custody of the examining body."
23. The duty of examining bodies is to subject the candidates who have
completed a course of study or a period of training in accordance with its
"curricula, to a process of verification/examination/testing of their"
"knowledge, ability or skill, or to ascertain whether they can be said to have"
successfully completed or passed the course of study or training. Other
specialized Examining Bodies may simply subject candidates to a process of
"verification by an examination, to find out whether such person is suitable"
"for a particular post, job or assignment. An examining body, if it is a public"
"authority entrusted with public functions, is required to act fairly,"
"reasonably, uniformly and consistently for public good and in public"
interest. This Court has explained the role of an examining body in regard to
the process of holding examination in the context of examining whether it
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs."
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:"
"“The process of holding examinations, evaluating answer scripts,"
declaring results and issuing certificates are different stages of a single
statutory non-commercial function. It is not possible to divide this
function as partly statutory and partly administrative. When the
Examination Board conducts an examination in discharge of its statutory
"function, it does not offer its ""services"" to any candidate. Nor does a"
35
"student who participates in the examination conducted by the Board, hires"
or avails of any service from the Board for a consideration. On the other
"hand, a candidate who participates in the examination conducted by the"
"Board, is a person who has undergone a course of study and who requests"
the Board to test him as to whether he has imbibed sufficient knowledge to
be fit to be declared as having successfully completed the said course of
"education; and if so, determine his position or rank or competence vis-a-"
vis other examinees. The process is not therefore availment of a service by
"a student, but participation in a general examination conducted by the"
Board to ascertain whether he is eligible and fit to be considered as having
successfully completed the secondary education course. The examination
fee paid by the student is not the consideration for availment of any
"service, but the charge paid for the privilege of participation in the"
examination.……… The fact that in the course of conduct of the
"examination, or evaluation of answer-scripts, or furnishing of mark-books"
"or certificates, there may be some negligence, omission or deficiency,"
"does not convert the Board into a service-provider for a consideration, nor"
convert the examinee into a consumer ………”
It cannot therefore be said that the examining body is in a fiduciary
relationship either with reference to the examinee who participates in the
examination and whose answer-books are evaluated by the examining body.
24. We may next consider whether an examining body would be entitled
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that"
it is in a fiduciary relationship with the examinee. That section provides that
"notwithstanding anything contained in the Act, there shall be no obligation"
to give any citizen information available to a person in his fiduciary
"relationship. This would only mean that even if the relationship is fiduciary,"
the exemption would operate in regard to giving access to the information
36
"held in fiduciary relationship, to third parties. There is no question of the"
"fiduciary withholding information relating to the beneficiary, from the"
beneficiary himself. One of the duties of the fiduciary is to make thorough
disclosure of all relevant facts of all transactions between them to the
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if"
"it is in a fiduciary relationship with an examinee, will be liable to make a full"
disclosure of the evaluated answer-books to the examinee and at the same
"time, owe a duty to the examinee not to disclose the answer-books to anyone"
"else. If A entrusts a document or an article to B to be processed, on"
"completion of processing, B is not expected to give the document or article"
to anyone else but is bound to give the same to A who entrusted the
"document or article to B for processing. Therefore, if a relationship of"
fiduciary and beneficiary is assumed between the examining body and the
"examinee with reference to the answer-book, section 8(1)(e) would operate"
as an exemption to prevent access to any third party and will not operate as a
"bar for the very person who wrote the answer-book, seeking inspection or"
disclosure of it.
25. An evaluated answer book of an examinee is a combination of two
different ‘informations’. The first is the answers written by the examinee and
37
second is the marks/assessment by the examiner. When an examinee seeks
inspection of his evaluated answer-books or seeks a certified copy of the
"evaluated answer-book, the information sought by him is not really the"
"answers he has written in the answer-books (which he already knows), nor"
the total marks assigned for the answers (which has been declared). What he
"really seeks is the information relating to the break-up of marks, that is, the"
specific marks assigned to each of his answers. When an examinee seeks
"‘information’ by inspection/certified copies of his answer-books, he knows"
the contents thereof being the author thereof. When an examinee is
"permitted to examine an answer-book or obtain a certified copy, the"
examining body is not really giving him some information which is held by
"it in trust or confidence, but is only giving him an opportunity to read what"
he had written at the time of examination or to have a copy of his answers.
"Therefore, in furnishing the copy of an answer-book, there is no question of"
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is"
not in regard to the answer-book but in regard to the marks awarded on
evaluation of the answer-book. Even here the total marks given to the
examinee in regard to his answer-book are already declared and known to
the examinee. What the examinee actually wants to know is the break-up of
"marks given to him, that is how many marks were given by the examiner to"
38
each of his answers so that he can assess how is performance has been
evaluated and whether the evaluation is proper as per his hopes and
"expectations. Therefore, the test for finding out whether the information is"
"exempted or not, is not in regard to the answer book but in regard to the"
evaluation by the examiner.
26. This takes us to the crucial issue of evaluation by the examiner. The
examining body engages or employs hundreds of examiners to do the
evaluation of thousands of answer books. The question is whether the
information relating to the ‘evaluation’ (that is assigning of marks) is held
by the examining body in a fiduciary relationship. The examining bodies
contend that even if fiduciary relationship does not exist with reference to
"the examinee, it exists with reference to the examiner who evaluates the"
answer-books. On a careful examination we find that this contention has no
merit. The examining body entrusts the answer-books to an examiner for
evaluation and pays the examiner for his expert service. The work of
evaluation and marking the answer-book is an assignment given by the
examining body to the examiner which he discharges for a consideration.
"Sometimes, an examiner may assess answer-books, in the course of his"
"employment, as a part of his duties without any specific or special"
39
remuneration. In other words the examining body is the ‘principal’ and the
"examiner is the agent entrusted with the work, that is, evaluation of answer-"
"books. Therefore, the examining body is not in the position of a fiduciary"
"with reference to the examiner. On the other hand, when an answer-book is"
"entrusted to the examiner for the purpose of evaluation, for the period the"
answer-book is in his custody and to the extent of the discharge of his
"functions relating to evaluation, the examiner is in the position of a fiduciary"
with reference to the examining body and he is barred from disclosing the
contents of the answer-book or the result of evaluation of the answer-book to
anyone other than the examining body. Once the examiner has evaluated the
"answer books, he ceases to have any interest in the evaluation done by him."
"He does not have any copy-right or proprietary right, or confidentiality right"
in regard to the evaluation. Therefore it cannot be said that the examining
"body holds the evaluated answer books in a fiduciary relationship, qua the"
examiner.
"27. We, therefore, hold that an examining body does not hold the"
evaluated answer-books in a fiduciary relationship. Not being information
"available to an examining body in its fiduciary relationship, the exemption"
under section 8(1)(e) is not available to the examining bodies with reference
to evaluated answer-books. As no other exemption under section 8 is
40
"available in respect of evaluated answer books, the examining bodies will"
have to permit inspection sought by the examinees.
Re : Question (iv)
28. When an examining body engages the services of an examiner to
"evaluate the answer-books, the examining body expects the examiner not to"
disclose the information regarding evaluation to anyone other than the
examining body. Similarly the examiner also expects that his name and
particulars would not be disclosed to the candidates whose answer-books are
"evaluated by him. In the event of such information being made known, a"
disgruntled examinee who is not satisfied with the evaluation of the answer
"books, may act to the prejudice of the examiner by attempting to endanger"
"his physical safety. Further, any apprehension on the part of the examiner"
"that there may be danger to his physical safety, if his identity becomes"
"known to the examinees, may come in the way of effective discharge of his"
"duties. The above applies not only to the examiner, but also to the"
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book."
The answer book usually contains not only the signature and code number of
"the examiner, but also the signatures and code number of the scrutiniser/co-"
ordinator/head examiner. The information as to the names or particulars of
the examiners/co-ordinators/scrutinisers/head examiners are therefore
41
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground"
"that if such information is disclosed, it may endanger their physical safety."
"Therefore, if the examinees are to be given access to evaluated answer-"
"books either by permitting inspection or by granting certified copies, such"
access will have to be given only to that part of the answer-book which does
not contain any information or signature of the examiners/co-
"ordinators/scrutinisers/head examiners, exempted from disclosure under"
section 8(1)(g) of RTI Act. Those portions of the answer-books which
contain information regarding the examiners/co-ordinators/scrutinisers/head
examiners or which may disclose their identity with reference to signature or
"initials, shall have to be removed, covered, or otherwise severed from the"
"non-exempted part of the answer-books, under section 10 of RTI Act."
29. The right to access information does not extend beyond the period
during which the examining body is expected to retain the answer-books. In
"the case of CBSE, the answer-books are required to be maintained for a"
period of three months and thereafter they are liable to be disposed
of/destroyed. Some other examining bodies are required to keep the answer-
books for a period of six months. The fact that right to information is
available in regard to answer-books does not mean that answer-books will
have to be maintained for any longer period than required under the rules
42
and regulations of the public authority. The obligation under the RTI Act is
to make available or give access to existing information or information
which is expected to be preserved or maintained. If the rules and regulations
governing the functioning of the respective public authority require
"preservation of the information for only a limited period, the applicant for"
information will be entitled to such information only if he seeks the
"information when it is available with the public authority. For example, with"
"reference to answer-books, if an examinee makes an application to CBSE for"
inspection or grant of certified copies beyond three months (or six months or
such other period prescribed for preservation of the records in regard to
"other examining bodies) from the date of declaration of results, the"
application could be rejected on the ground that such information is not
available. The power of the Information Commission under section 19(8) of
the RTI Act to require a public authority to take any such steps as may be
"necessary to secure compliance with the provision of the Act, does not"
"include a power to direct the public authority to preserve the information, for"
any period larger than what is provided under the rules and regulations of the
public authority.
"30. On behalf of the respondents/examinees, it was contended that having"
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on"
43
the part of every public authority to maintain the information for a minimum
period of twenty years and make it available whenever an application was
made in that behalf. This contention is based on a complete misreading and
misunderstanding of section 8(3). The said sub-section nowhere provides
that records or information have to be maintained for a period of twenty
years. The period for which any particular records or information has to be
maintained would depend upon the relevant statutory rule or regulation of
the public authority relating to the preservation of records. Section 8(3)
"provides that information relating to any occurrence, event or matters which"
has taken place and occurred or happened twenty years before the date on
"which any request is made under section 6, shall be provided to any person"
making a request. This means that where any information required to be
maintained and preserved for a period beyond twenty years under the rules
"of the public authority, is exempted from disclosure under any of the"
"provisions of section 8(1) of RTI Act, then, notwithstanding such"
"exemption, access to such information shall have to be provided by"
"disclosure thereof, after a period of twenty years except where they relate to"
"information falling under clauses (a), (c) and (i) of section 8(1). In other"
"words, section 8(3) provides that any protection against disclosure that may"
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to"
44
be available after twenty years in regard to records which are required to be
preserved for more than twenty years. Where any record or information is
required to be destroyed under the rules and regulations of a public authority
"prior to twenty years, section 8(3) will not prevent destruction in accordance"
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring
"all ‘information’ to be preserved and maintained for twenty years or more,"
nor does it override any rules or regulations governing the period for which
"the record, document or information is required to be preserved by any"
public authority.
31. The effect of the provisions and scheme of the RTI Act is to divide
‘information’ into the three categories. They are :
(i) Information which promotes transparency and accountability in
"the working of every public authority, disclosure of which may"
also help in containing or discouraging corruption (enumerated in
clauses (b) and (c) of section 4(1) of RTI Act).
(ii) Other information held by public authority (that is all information
other than those falling under clauses (b) and (c) of section 4(1) of
RTI Act).
(iii) Information which is not held by or under the control of any
public authority and which cannot be accessed by a public
authority under any law for the time being in force.
Information under the third category does not fall within the scope of RTI
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held"
45
"by or under the control of a public authority, which falls either under the first"
or second category. In regard to the information falling under the first
"category, there is also a special responsibility upon public authorities to suo"
moto publish and disseminate such information so that they will be easily
and readily accessible to the public without any need to access them by
having recourse to section 6 of RTI Act. There is no such obligation to
publish and disseminate the other information which falls under the second
category.
"32. The information falling under the first category, enumerated in"
sections 4(1)(b) & (c) of RTI Act are extracted below :
“4. Obligations of public authorities.-(1) Every public authority shall--
(a) xxxxxx
(b) publish within one
"hundred and twenty days from the enactment of this Act,--"
"(i) the particulars of its organisation, functions and duties;"
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making
"process, including channels of supervision and"
accountability;
(iv) the norms set by it for the discharge of its functions;
"(v) the rules, regulations, instructions, manuals and records,"
held by it or under its control or used by its employees for
discharging its functions;
(vi) a statement of the categories of documents that are held
by it or under its control;
46
(vii) the particulars of any arrangement that exists for
"consultation with, or representation by, the members of the"
public in relation to the formulation of its policy or
implementation thereof;
"(viii) a statement of the boards, councils, committees and"
other bodies consisting of two or more persons constituted
"as its part or for the purpose of its advice, and as to whether"
"meetings of those boards, councils, committees and other"
"bodies are open to the public, or the minutes of such"
meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its
"officers and employees, including the system of"
compensation as provided in its regulations;
"(xi) the budget allocated to each of its agency, indicating"
"the particulars of all plans, proposed expenditures and"
reports on disbursements made;
"(xii) the manner of execution of subsidy programmes,"
including the amounts allocated and the details of
beneficiaries of such programmes;
"(xiii) particulars of recipients of concessions, permits or"
authorisations granted by it;
"(xiv) details in respect of the information, available to or"
"held by it, reduced in an electronic form;"
(xv) the particulars of facilities available to citizens for
"obtaining information, including the working hours of a"
"library or reading room, if maintained for public use;"
"(xvi) the names, designations and other particulars of the"
Public Information Officers;
(xvii) such other information as may be prescribed; and
thereafter update these publications every year;
(c) publish all relevant facts
while formulating important policies or announcing the decisions
which affect public;
(emphasis supplied)
47
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of"
information enumerated in sections 4(1)(b) & (c) are extracted below:
“(2) It shall be a constant endeavour of every public
authority to take steps in accordance with the requirements of clause (b) of
sub-section (1) to provide as much information suo motu to the public
"at regular intervals through various means of communications,"
"including internet, so that the public have minimum resort to the use"
of this Act to obtain information.
"(3) For the purposes of sub-section (1), every"
information shall be disseminated widely and in such form and
manner which is easily accessible to the public.
(4) All materials shall be disseminated taking into
"consideration the cost effectiveness, local language and the most effective"
method of communication in that local area and the information should be
"easily accessible, to the extent possible in electronic format with the"
"Central Public Information Officer or State Public Information Officer, as"
"the case may be, available free or at such cost of the medium or the print"
cost price as may be prescribed.
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated"""
means making known or communicated the information to the public
"through notice boards, newspapers, public announcements, media"
"broadcasts, the internet or any other means, including inspection of offices"
of any public authority.”
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act is in the nature
of an exception to section 3 which empowers the citizens with the right to
"information, which is a derivative from the freedom of speech; and that"
"therefore section 8 should be construed strictly, literally and narrowly. This"
may not be the correct approach. The Act seeks to bring about a balance
"between two conflicting interests, as harmony between them is essential for"
preserving democracy. One is to bring about transparency and accountability
by providing access to information under the control of public authorities.
48
"The other is to ensure that the revelation of information, in actual practice,"
does not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidentiality of sensitive information. The preamble to the
Act specifically states that the object of the Act is to harmonise these two
conflicting interests. While sections 3 and 4 seek to achieve the first
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective."
"Therefore when section 8 exempts certain information from being disclosed,"
"it should not be considered to be a fetter on the right to information, but as"
an equally important provision protecting other public interests essential for
the fulfilment and preservation of democratic ideals.
34. When trying to ensure that the right to information does not conflict
with several other public interests (which includes efficient operations of the
"governments, preservation of confidentiality of sensitive information,"
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and"
enumerate all types of information which require to be exempted from
disclosure in public interest. The legislature has however made an attempt to
do so. The enumeration of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier Act that is section 8 of
"Freedom to Information Act, 2002. The Courts and Information"
49
Commissions enforcing the provisions of RTI Act have to adopt a purposive
"construction, involving a reasonable and balanced approach which"
"harmonises the two objects of the Act, while interpreting section 8 and the"
other provisions of the Act.
"35. At this juncture, it is necessary to clear some misconceptions about"
the RTI Act. The RTI Act provides access to all information that is
available and existing. This is clear from a combined reading of section 3
and the definitions of ‘information’ and ‘right to information’ under clauses
(f) and (j) of section 2 of the Act. If a public authority has any information in
"the form of data or analysed data, or abstracts, or statistics, an applicant may"
"access such information, subject to the exemptions in section 8 of the Act."
But where the information sought is not a part of the record of a public
"authority, and where such information is not required to be maintained under"
"any law or the rules or regulations of the public authority, the Act does not"
"cast an obligation upon the public authority, to collect or collate such non-"
available information and then furnish it to an applicant. A public authority
is also not required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not required to provide
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any"
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’
50
"in the definition of ‘information’ in section 2(f) of the Act, only refers to"
such material available in the records of the public authority. Many public
"authorities have, as a public relation exercise, provide advice, guidance and"
opinion to the citizens. But that is purely voluntary and should not be
confused with any obligation under the RTI Act.
36. Section 19(8) of RTI Act has entrusted the Central/State Information
"Commissions, with the power to require any public authority to take any"
such steps as may be necessary to secure the compliance with the provisions
"of the Act. Apart from the generality of the said power, clause (a) of section"
"19(8) refers to six specific powers, to implement the provision of the Act."
Sub-clause (i) empowers a Commission to require the public authority to
provide access to information if so requested in a particular ‘form’ (that is
"either as a document, micro film, compact disc, pendrive, etc.). This is to"
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a
Commission to require the public authority to appoint a Central Public
Information Officer or State Public Information Officer. This is to secure
compliance with section 5 of the Act. Sub-clause (iii) empowers the
Commission to require a public authority to publish certain information or
categories of information. This is to secure compliance with section 4(1) and
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public
51
authority to make necessary changes to its practices relating to the
"maintenance, management and destruction of the records. This is to secure"
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)
empowers a Commission to require the public authority to increase the
training for its officials on the right to information. This is to secure
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a"
Commission to require the public authority to provide annual reports in
regard to the compliance with clause (b) of section 4(1). This is to ensure
compliance with the provisions of clause (b) of section 4(1) of the Act. The
power under section 19(8) of the Act however does not extend to requiring a
public authority to take any steps which are not required or contemplated to
secure compliance with the provisions of the Act or to issue directions
beyond the provisions of the Act. The power under section 19(8) of the Act
is intended to be used by the Commissions to ensure compliance with the
"Act, in particular ensure that every public authority maintains its records"
duly catalogued and indexed in the manner and in the form which facilitates
"the right to information and ensure that the records are computerized, as"
required under clause (a) of section 4(1) of the Act; and to ensure that the
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are
"published and disseminated, and are periodically updated as provided in sub-"
52
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated
in clause (b) of section 4(1) of the Act are effectively disseminated (by
"publications in print and on websites and other effective means), apart from"
"providing transparency and accountability, citizens will be able to access"
relevant information and avoid unnecessary applications for information
under the Act.
37. The right to information is a cherished right. Information and right to
information are intended to be formidable tools in the hands of responsible
citizens to fight corruption and to bring in transparency and accountability.
The provisions of RTI Act should be enforced strictly and all efforts should
be made to bring to light the necessary information under clause (b) of
section 4(1) of the Act which relates to securing transparency and
accountability in the working of public authorities and in discouraging
"corruption. But in regard to other information,(that is information other than"
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance"
and emphasis are given to other public interests (like confidentiality of
"sensitive information, fidelity and fiduciary relationships, efficient operation"
"of governments, etc.). Indiscriminate and impractical demands or directions"
under RTI Act for disclosure of all and sundry information (unrelated to
transparency and accountability in the functioning of public authorities and
53
eradication of corruption) would be counter-productive as it will adversely
affect the efficiency of the administration and result in the executive getting
bogged down with the non-productive work of collecting and furnishing
"information. The Act should not be allowed to be misused or abused, to"
"become a tool to obstruct the national development and integration, or to"
"destroy the peace, tranquility and harmony among its citizens. Nor should it"
be converted into a tool of oppression or intimidation of honest officials
striving to do their duty. The nation does not want a scenario where 75% of
the staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular
duties. The threat of penalties under the RTI Act and the pressure of the
authorities under the RTI Act should not lead to employees of a public
"authorities prioritising ‘information furnishing’, at the cost of their normal"
and regular duties.
Conclusion
"38. In view of the foregoing, the order of the High Court directing the"
examining bodies to permit examinees to have inspection of their answer
"books is affirmed, subject to the clarifications regarding the scope of the RTI"
54
Act and the safeguards and conditions subject to which ‘information’ should
be furnished. The appeals are disposed of accordingly.
……………………….J
[R. V. Raveendran]
……………………….J
[A. K. Patnaik]
New Delhi;
"August 9, 2011."
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.34868 OF 2009
Khanapuram Gandaiah … Petitioner
Vs.
Administrative Officer & Ors. … Respondents
O R D E R
1. This special leave petition has been filed against the judgment and
order dated 24.4.2009 passed in Writ Petition No.28810 of 2008 by the High
Court of Andhra Pradesh by which the writ petition against the order of
dismissal of the petitioner’s application and successive appeals under the
"Right to Information Act, 2005 (hereinafter called the “RTI Act”) has been"
"dismissed. In the said petition, the direction was sought by the Petitioner to"
the Respondent No.1 to provide information as asked by him vide his
application dated 15.11.2006 from the Respondent No.4 – a Judicial Officer
"as for what reasons, the Respondent No.4 had decided his Miscellaneous"
Appeal dishonestly.
2
"2. The facts and circumstances giving rise to this case are, that the"
petitioner claimed to be in exclusive possession of the land in respect of
"which civil suit No.854 of 2002 was filed before Additional Civil Judge,"
Ranga Reddy District praying for perpetual injunction by Dr. Mallikarjina
"Rao against the petitioner and another, from entering into the suit land."
Application filed for interim relief in the said suit stood dismissed. Being
"aggrieved, the plaintiff therein preferred CMA No.185 of 2002 and the same"
was also dismissed. Two other suits were filed in respect of the same
property impleading the Petitioner also as the defendant. In one of the suits
"i.e. O.S. No.875 of 2003, the Trial Court granted temporary injunction"
"against the Petitioner. Being aggrieved, Petitioner preferred the CMA No.67"
"of 2005, which was dismissed by the Appellate Court – Respondent No.4"
vide order dated 10.8.2006.
3. Petitioner filed an application dated 15.11.2006 under Section 6 of the
RTI Act before the Administrative Officer-cum-Assistant State Public
Information Officer (respondent no.1) seeking information to the queries
mentioned therein. The said application was rejected vide order dated
23.11.2006 and an appeal against the said order was also dismissed vide
order dated 20.1.2007. Second Appeal against the said order was also
3
dismissed by the Andhra Pradesh State Information Commission vide order
dated 20.11.2007. The petitioner challenged the said order before the High
"Court, seeking a direction to the Respondent No.1 to furnish the information"
as under what circumstances the Respondent No.4 had passed the Judicial
Order dismissing the appeal against the interim relief granted by the Trial
Court. The Respondent No.4 had been impleaded as respondent by name.
The Writ Petition had been dismissed by the High Court on the grounds that
the information sought by the petitioner cannot be asked for under the RTI
"Act. Thus, the application was not maintainable. More so, the judicial"
"officers are protected by the Judicial Officers’ Protection Act, 1850"
"(hereinafter called the “Act 1850”). Hence, this petition."
"4. Mr. V. Kanagaraj, learned Senior Counsel appearing for the petitioner"
has submitted that right to information is a fundamental right of every
citizen. The RTI Act does not provide for any special protection to the
"Judges, thus petitioner has a right to know the reasons as to how the"
"Respondent No. 4 has decided his appeal in a particular manner. Therefore,"
the application filed by the petitioner was maintainable. Rejection of the
application by the Respondent No. 1 and Appellate authorities rendered the
petitioner remediless. Petitioner vide application dated 15.11.2006 had asked
4
as under what circumstances the Respondent No.4 ignored the written
"arguments and additional written arguments, as the ignorance of the same"
"tantamount to judicial dishonesty, the Respondent No.4 omitted to examine"
the fabricated documents filed by the plaintiff; and for what reason the
respondent no.4 omitted to examine the documents filed by the petitioner.
Similar information had been sought on other points.
"5. At the outset, it must be noted that the petitioner has not challenged"
"the order passed by the Respondent No. 4. Instead, he had filed the"
application under Section 6 of the RTI Act to know why and for what
reasons Respondent No. 4 had come to a particular conclusion which was
against the petitioner. The nature of the questions posed in the application
was to the effect why and for what reason Respondent No. 4 omitted to
examine certain documents and why he came to such a conclusion.
"Altogether, the petitioner had sought answers for about ten questions raised"
in his application and most of the questions were to the effect as to why
Respondent No. 4 had ignored certain documents and why he had not taken
note of certain arguments advanced by the petitioner’s counsel.
5
6. Under the RTI Act “information” is defined under Section 2(f) which
provides:
"“information” means any material in any form, including"
"records, documents, memos, e-mails, opinions, advices, press"
"releases, circulars, orders, logbooks, contracts, report, papers,"
"samples, models, data material held in any electronic form and"
information relating to any private body which can be accessed
by a public authority under any other law for the time being in
force.”
This definition shows that an applicant under Section 6 of the RTI Act can
get any information which is already in existence and accessible to the
"public authority under law. Of course, under the RTI Act an applicant is"
"entitled to get copy of the opinions, advices, circulars, orders, etc., but he"
"cannot ask for any information as to why such opinions, advices, circulars,"
"orders, etc. have been passed, especially in matters pertaining to judicial"
decisions. A judge speaks through his judgments or orders passed by him. If
"any party feels aggrieved by the order/judgment passed by a judge, the"
remedy available to such a party is either to challenge the same by way of
appeal or by revision or any other legally permissible mode. No litigant can
be allowed to seek information as to why and for what reasons the judge had
come to a particular decision or conclusion. A judge is not bound to explain
later on for what reasons he had come to such a conclusion.
6
"7. Moreover, in the instant case, the petitioner submitted his application"
under Section 6 of the RTI Act before the Administrative Officer-cum-
Assistant State Public Information Officer seeking information in respect of
"the questions raised in his application. However, the Public Information"
Officer is not supposed to have any material which is not before him; or any
information he could have obtained under law. Under Section 6 of the RTI
"Act, an applicant is entitled to get only such information which can be"
accessed by the “public authority” under any other law for the time being in
force. The answers sought by the petitioner in the application could not have
been with the public authority nor could he have had access to this
information and Respondent No. 4 was not obliged to give any reasons as to
why he had taken such a decision in the matter which was before him. A
judge cannot be expected to give reasons other than those that have been
enumerated in the judgment or order. The application filed by the petitioner
before the public authority is per se illegal and unwarranted. A judicial
officer is entitled to get protection and the object of the same is not to protect
"malicious or corrupt judges, but to protect the public from the dangers to"
which the administration of justice would be exposed if the concerned
"judicial officers were subject to inquiry as to malice, or to litigation with"
those whom their decisions might offend. If anything is done contrary to
7
"this, it would certainly affect the independence of the judiciary. A judge"
should be free to make independent decisions.
"8. As the petitioner has misused the provisions of the RTI Act, the High"
Court had rightly dismissed the writ petition.
"9. In view of the above, the Special Leave Petition is dismissed"
accordingly.
………………………….CJI.
(K.G. BALAKRISHNAN)
…………………………….J.
(Dr. B.S. CHAUHAN)
"New Delhi,"
"January 4, 2010"
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 9017 OF 2013
(Arising out of SLP (C) No.24290 of 2012)
Thalappalam Ser. Coop. Bank
Ltd. and others Appellants
Versus
State of Kerala and others
Respondents
WITH
"CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013"
"(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797"
of 2013)
J U D G M E N T
"K.S. Radhakrishnan, J."
1. Leave granted.
"2. We are, in these appeals, concerned with the question"
whether a co-operative society registered under the Kerala
"Co-operative Societies Act, 1969 (for short “the Societies"
Page 1
2
Act”) will fall within the definition of “public authority” under
"Section 2(h) of the Right to Information Act, 2005 (for short"
“the RTI Act”) and be bound by the obligations to provide
information sought for by a citizen under the RTI Act.
"3. A Full Bench of the Kerala High Court, in its judgment"
"reported in AIR 2012 Ker 124, answered the question in the"
affirmative and upheld the Circular No.23 of 2006 dated
"01.06.2006, issued by the Registrar of the Co-operative"
"Societies, Kerala stating that all the co-operative institutions"
"coming under the administrative control of the Registrar, are"
“public authorities” within the meaning of Section 2(h) of the
RTI Act and obliged to provide information as sought for.
The question was answered by the Full Bench in view of the
conflicting views expressed by a Division Bench of the Kerala
"High Court in Writ Appeal No.1688 of 2009, with an earlier"
judgment of the Division Bench reported in Thalapalam
Service Co-operative Bank Ltd. v. Union of India AIR
"2010 Ker 6, wherein the Bench took the view that the"
question as to whether a co-operative society will fall under
Page 2
3
"Section 2(h) of the RTI Act is a question of fact, which will"
depend upon the question whether it is substantially
"financed, directly or indirectly, by the funds provided by the"
"State Government which, the Court held, has to be decided"
depending upon the facts situation of each case.
"4. Mr. K. Padmanabhan Nair, learned senior counsel"
appearing for some of the societies submitted that the views
expressed by the Division Bench in Thalapalam Service
"Co-operative Bank Ltd. (supra) is the correct view, which"
calls for our approval. Learned senior counsel took us
through the various provisions of the Societies Act as well as
of the RTI Act and submitted that the societies are
autonomous bodies and merely because the officers
functioning under the Societies Act have got supervisory
control over the societies will not make the societies public
authorities within the meaning of Section 2(h) of the RTI Act.
Learned senior counsel also submitted that these societies
"are not owned, controlled or substantially financed, directly"
"or indirectly, by the State Government. Learned senior"
Page 3
4
counsel also submitted that the societies are not statutory
bodies and are not performing any public functions and will
not come within the expression “state” within the meaning
under Article 12 of the Constitution of India.
"5. Mr. Ramesh Babu MR, learned counsel appearing for"
"the State, supported the reasoning of the impugned"
judgment and submitted that such a circular was issued by
the Registrar taking into consideration the larger public
interest so as to promote transparency and accountability in
the working of every co-operative society in the State of
Kerala. Reference was also made to various provisions of
the Societies Act and submitted that those provisions would
indicate that the Registrar has got all pervading control over
"the societies, including audit, enquiry and inspection and the"
power to initiate surcharge proceedings. Power is also
vested on the Registrar under Section 32 of the Societies Act
to supersede the management of the society and to appoint
an administrator. This would indicate that though societies
"are body corporates, they are under the statutory control of"
Page 4
5
the Registrar of Co-operative Societies. Learned counsel
submitted that in such a situation they fall under the
definition of “pubic authority” within the meaning of Section
"2(h) of the RTI Act. Shri Ajay, learned counsel appearing for"
"the State Information Commission, stated that the"
applicability of the RTI Act cannot be excluded in terms of
the clear provision of the Act and they are to be interpreted
to achieve the object and purpose of the Act. Learned
counsel submitted that at any rate having regard to the
"definition of “information” in Section 2(f) of the Act, the"
access to information in relation to Societies cannot be
denied to a citizen.
Facts:
"6. We may, for the disposal of these appeals, refer to the"
facts pertaining to Mulloor Rural Co-operative Society Ltd. In
"that case, one Sunil Kumar stated to have filed an"
application dated 8.5.2007 under the RTI Act seeking
particulars relating to the bank accounts of certain members
"of the society, which the society did not provide. Sunil"
Page 5
6
Kumar then filed a complaint dated 6.8.2007 to the State
"Information Officer, Kerala who, in turn, addressed a letter"
dated 14.11.2007 to the Society stating that application filed
"by Sunil Kumar was left unattended. Society, then, vide"
letter dated 24.11.2007 informed the applicant that the
information sought for is “confidential in nature” and one
"warranting “commercial confidence”. Further, it was also"
pointed out that the disclosure of the information has no
relationship to any “public activity” and held by the society
"in a “fiduciary capacity”. Society was, however, served with"
an order dated 16.1.2008 by the State Information
"Commission, Kerala, stating that the Society has violated the"
mandatory provisions of Section 7(1) of the RTI Act
rendering themselves liable to be punished under Section 20
of the Act. State Information Officer is purported to have
relied upon a circular No.23/2006 dated 01.06.2006 issued
"by the Registrar, Co-operative Societies bringing in all"
societies under the administrative control of the Registrar of
"Co-operative Societies, as “public authorities” under Section"
2(h) of the RTI Act.
Page 6
7
7. Mulloor Co-operative Society then filed Writ Petition
"No.3351 of 2008 challenging the order dated 16.1.2008,"
which was heard by a learned Single Judge of the High Court
along with other writ petitions. All the petitions were
disposed of by a common judgment dated 03.04.2009
holding that all co-operative societies registered under the
Societies Act are public authorities for the purpose of the RTI
Act and are bound to act in conformity with the obligations in
Chapter 11 of the Act and amenable to the jurisdiction of the
State Information Commission. The Society then preferred
Writ Appeal No.1688 of 2009. While that appeal was
"pending, few other appeals including WA No.1417 of 2009,"
filed against the common judgment of the learned Single
Judge dated 03.04.2009 came up for consideration before
another Division Bench of the High Court which set aside the
"judgment of the learned Single Judge dated 03.04.2009, the"
judgment of which is reported in AIR 2010 Ker 6. The Bench
held that the obedience to Circular No.23 dated 1.6.2006 is
optional in the sense that if the Society feels that it satisfies
Page 7
8
"the definition of Section 2(h), it can appoint an Information"
Officer under the RTI Act or else the State Information
Commissioner will decide when the matter reaches before
"him, after examining the question whether the Society is"
"substantially financed, directly or indirectly, by the funds"
"provided by the State Government. The Division Bench,"
"therefore, held that the question whether the Society is a"
public authority or not under Section 2(h) is a disputed
question of fact which has to be resolved by the authorities
under the RTI Act.
8. Writ Appeal No.1688 of 2009 later came up before
"another Division Bench, the Bench expressed some"
reservations about the views expressed by the earlier
Division Bench in Writ Appeal No.1417 of 2009 and vide its
"order dated 24.3.2011 referred the matter to a Full Bench, to"
examine the question whether co-operative societies
registered under the Societies Act are generally covered
under the definition of Section 2(h) of the RTI Act. The Full
Bench answered the question in the affirmative giving a
Page 8
9
"liberal construction of the words “public authority”, bearing"
"in mind the “transformation of law” which, according to the"
"Full Bench, is to achieve transparency and accountability"
with regard to affairs of a public body.
"9. We notice, the issue raised in these appeals is of"
considerable importance and may have impact on similar
other Societies registered under the various State
enactments across the country.
10. The State of Kerala has issued a letter dated 5.5.2006
"to the Registrar of Co-operative Societies, Kerala with"
"reference to the RTI Act, which led to the issuance of Circular"
"No.23/2006 dated 01.06.2006, which reads as under:"
“G1/40332/05
"Registrar of Co-operative Societies,"
"Thiruvananthapuram, Dated 01.06.2006"
Circular No.23/2006
"Sub: Right to Information Act, 2005- Co-operative"
Institutions included in the definition of “Public Authority”
Ref: Governments Letter No.3159/P.S.1/06
Dated 05.05.2006
Page 9
10
"According to Right to Information Act, 2005, sub-section"
(1) and (2) of Section 5 of the Act severy public authority
within 100 days of the enactment of this Act designate as
many officers as public information officers as may be
necessary to provide information to persons requesting for
information under the Act. In this Act Section 2(h) defines
institutions which come under the definition of public
authority. As per the reference letter the government
"informed that, according to Section 2(h) of the Act all"
institutions formed by laws made by state legislature is a
“public authority” and therefore all co-operative
institutions coming under the administrative control of
The Registrar of co-operative societies are also public
authorities.
In the above circumstance the following directions are
issued:
1. All co-operative institutions coming under the
administrative control of the Registrar of co-operative
societies are “public authorities” under the Right to
"Information Act, 2005 (central law No.22 of 2005). Co-"
operative institutions are bound to give all information
"to applications under the RTI Act, if not given they will"
be subjected to punishment under the Act. For this all
co-operative societies should appoint public
information/assistant public information officers
immediately and this should be published in the
government website.
2. For giving information for applicants government order
No.8026/05/government administration department act
Page 10
11
and rule can be applicable and 10 rupees can be
charged as fees for each application. Also as per GAD
Act and rule and the government Order No.2383/06
dated 01.04.2006.
3. Details of Right to Information Act are available in the
government website (www.kerala.gov.in..... ) or right to
information gov.in ) other details regarding the Act are
also available in the government website.
4. Hereafter application for information from co-operative
institutions need not be accepted by the information
officers of this department. But if they get such
applications it should be given back showing the
reasons or should be forwarded to the respective co-
operative institutions with necessary directions and the
applicant should be informed about this. In this case it
is directed to follow the time limit strictly.
5. It is directed that all joint registrars/assistant registrars
should take immediate steps to bring this to the urgent
notice of all co-operative institutions. They should
inform to this office the steps taken within one week.
The Government Order No.2389/06 dated 01.04.2006 is
also enclosed.
Sd/-
V. Reghunath
Registrar of co-operative societies (in
charge)”
"11. The State Government, it is seen, vide its letter dated"
5.5.2006 has informed the Registrar of Co-operative
Page 11
12
"Societies that, as per Section 2(h) of the Act, all institutions"
formed by laws made by State Legislature is a “public
"authority” and, therefore, all co-operative institutions"
coming under the administrative control of the Registrar of
Co-operative Societies are also public authorities.
12. We are in these appeals concerned only with the co-
operative societies registered or deemed to be registered
"under the Co-operative Societies Act, which are not owned,"
controlled or substantially financed by the State or Central
"Government or formed, established or constituted by law"
made by Parliament or State Legislature.
Co-operative Societies and Article 12 of the
Constitution:
"13. We may first examine, whether the Co-operative"
"Societies, with which we are concerned, will fall within the"
expression “State” within the meaning of Article 12 of the
"Constitution of India and, hence subject to all constitutional"
limitations as enshrined in Part III of the Constitution. This
Page 12
13
Court in U.P. State Co-operative Land Development
Bank Limited v. Chandra Bhan Dubey and others
"(1999) 1 SCC 741, while dealing with the question of the"
maintainability of the writ petition against the U.P. State Co-
operative Development Bank Limited held the same as an
instrumentality of the State and an authority mentioned in
"Article 12 of the Constitution. On facts, the Court noticed"
that the control of the State Government on the Bank is all
pervasive and that the affairs of the Bank are controlled by
the State Government though it is functioning as a co-
"operative society, it is an extended arm of the State and"
thus an instrumentality of the State or authority as
mentioned under Article 12 of the Constitution. In All India
Sainik Schools employees’ Association v. Defence
"Minister-cum-Chairman Board of Governors, Sainik"
"Schools Society, New Delhi and others (1989)"
"Supplement 1 SCC 205, this Court held that the Sainik"
School society is “State” within the meaning of Article 12 of
the Constitution after having found that the entire funding is
by the State Government and by the Central Government
Page 13
14
and the overall control vests in the governmental authority
and the main object of the society is to run schools and
prepare students for the purpose feeding the National
Defence Academy.
14. This Court in Executive Committee of Vaish Degree
"College, Shamli and Others v. Lakshmi Narain and"
"Others (1976) 2 SCC 58, while dealing with the status of"
the Executive Committee of a Degree College registered
"under the Co-operative Societies Act, held as follows:"
“10………It seems to us that before an institution
can be a statutory body it must be created by or
under the statute and owe its existence to a
statute. This must be the primary thing which has
got to be established. Here a distinction must be
made between an institution which is not created
by or under a statute but is governed by certain
statutory provisions for the proper maintenance
and administration of the institution. There have
been a number of institutions which though not
created by or under any statute have adopted
"certain statutory provisions, but that by itself is"
"not, in our opinion, sufficient to clothe the"
institution with a statutory character……….”
"15. We can, therefore, draw a clear distinction between a"
"body which is created by a Statute and a body which, after"
Page 14
15
"having come into existence, is governed in accordance with"
"the provisions of a Statute. Societies, with which we are"
"concerned, fall under the later category that is governed by"
"the Societies Act and are not statutory bodies, but only body"
corporate within the meaning of Section 9 of the Kerala Co-
operative Societies Act having perpetual succession and
"common seal and hence have the power to hold property,"
"enter into contract, institute and defend suites and other"
legal proceedings and to do all things necessary for the
"purpose, for which it was constituted. Section 27 of the"
Societies Act categorically states that the final authority of a
society vests in the general body of its members and every
society is managed by the managing committee constituted
in terms of the bye-laws as provided under Section 28 of the
Societies Act. Final authority so far as such types of
"Societies are concerned, as Statute says, is the general body"
and not the Registrar of Cooperative Societies or State
Government.
Page 15
16
16. This Court in Federal Bank Ltd. v. Sagar Thomas
"and Others (2003) 10 SCC 733, held as follows:"
“32.Merely because Reserve Bank of India
lays the banking policy in the interest of the
banking system or in the interest of monetary
stability or sound economic growth having due
regard to the interests of the depositors etc. as
provided under Section 5(c)(a) of the Banking
Regulation Act does not mean that the private
companies carrying on the business or commercial
"activity of banking, discharge any public function"
or public duty. These are all regulatory measures
applicable to those carrying on commercial
activity in banking and these companies are to act
according to these provisions failing which certain
consequences follow as indicated in the Act itself.
As to the provision regarding acquisition of a
"banking company by the Government, it may be"
pointed out that any private property can be
acquired by the Government in public interest. It is
now a judicially accepted norm that private
interest has to give way to the public interest. If a
private property is acquired in public interest it
does not mean that the party whose property is
acquired is performing or discharging any function
or duty of public character though it would be so
for the acquiring authority”.
"17. Societies are, of course, subject to the control of the"
"statutory authorities like Registrar, Joint Registrar, the"
"Government, etc. but cannot be said that the State exercises"
any direct or indirect control over the affairs of the society
Page 16
17
which is deep and all pervasive. Supervisory or general
"regulation under the statute over the co-operative societies,"
which are body corporate does not render activities of the
body so regulated as subject to such control of the State so
as to bring it within the meaning of the “State” or
instrumentality of the State. Above principle has been
"approved by this Court in S.S. Rana v. Registrar, Co-"
operative Societies and another (2006) 11 SCC 634. In
that case this Court was dealing with the maintainability of
the writ petition against the Kangra Central Co-operative
"Society Bank Limited, a society registered under the"
provisions of the Himachal Pradesh Co-operative Societies
"Act, 1968. After examining various provisions of the H.P. Co-"
operative Societies Act this Court held as follows:
“9. It is not in dispute that the Society has not
been constituted under an Act. Its functions like
any other cooperative society are mainly
"regulated in terms of the provisions of the Act,"
except as provided in the bye-laws of the Society.
The State has no say in the functions of the
"Society. Membership, acquisition of shares and all"
other matters are governed by the bye-laws
framed under the Act. The terms and conditions of
"an officer of the cooperative society, indisputably,"
"are governed by the Rules. Rule 56, to which"
Page 17
18
"reference has been made by Mr Vijay Kumar, does"
not contain any provision in terms whereof any
legal right as such is conferred upon an officer of
the Society.
10. It has not been shown before us that the State
exercises any direct or indirect control over the
affairs of the Society for deep and pervasive
control. The State furthermore is not the majority
shareholder. The State has the power only to
"nominate one Director. It cannot, thus, be said"
that the State exercises any functional control
over the affairs of the Society in the sense that the
majority Directors are nominated by the State. For
arriving at the conclusion that the State has a
"deep and pervasive control over the Society,"
several other relevant questions are required to be
"considered, namely, (1) How was the Society"
created? (2) Whether it enjoys any monopoly
character? (3) Do the functions of the Society
partake to statutory functions or public functions?
and (4) Can it be characterised as public
authority?
"11. Respondent 2, the Society does not answer"
any of the aforementioned tests. In the case of a
"non-statutory society, the control thereover would"
mean that the same satisfies the tests laid down
by this Court in Ajay Hasia v. Khalid Mujib
Sehravardi. [See Zoroastrian Coop. Housing
"Society Ltd. v. Distt. Registrar, Coop. Societies"
(Urban).]
12. It is well settled that general regulations under
"an Act, like the Companies Act or the Cooperative"
"Societies Act, would not render the activities of a"
company or a society as subject to control of the
State. Such control in terms of the provisions of
the Act are meant to ensure proper functioning of
Page 18
19
the society and the State or statutory authorities
would have nothing to do with its day-to-day
functions.”
"18. We have, on facts, found that the Co-operative"
"Societies, with which we are concerned in these appeals, will"
not fall within the expression “State” or “instrumentalities of
the State” within the meaning of Article 12 of the
Constitution and hence not subject to all constitutional
limitations as enshrined in Part III of the Constitution. We
"may, however, come across situations where a body or"
organization though not a State or instrumentality of the
"State, may still satisfy the definition of public authority"
"within the meaning of Section 2(h) of the Act, an aspect"
which we may discuss in the later part of this Judgment.
Constitutional provisions and Co-operative autonomy:
19. Rights of the citizens to form co-operative societies
"voluntarily, is now raised to the level of a fundamental right"
and State shall endeavour to promote their autonomous
"functioning. The Parliament, with a view to enhance public"
faith in the co-operative institutions and to insulate them to
Page 19
20
avoidable political or bureaucratic interference brought in
"Constitutional (97th Amendment) Act, 2011, which received"
"the assent of the President on 12.01.2012, notified in the"
Gazette of India on 13.01.2012 and came into force on
15.02.2012.
20. Constitutional amendment has been effected to
encourage economic activities of co-operatives which in turn
help progress of rural India. Societies are expected not only
to ensure autonomous and democratic functioning of co-
"operatives, but also accountability of the management to the"
members and other share stake-holders. Article 19 protects
certain rights regarding freedom of speech. By virtue of
above amendment under Article 19(1)(c) the words “co-
operative societies” are added. Article 19(1)(c) reads as
under:
“19(1)(c) – All citizens shall have the right to form
associations or unions or co-operative societies”.
"Article 19(1)(c), therefore, guarantees the freedom to form"
"an association, unions and co-operative societies. Right to"
Page 20
21
"form a co-operative society is, therefore, raised to the level"
"of a fundamental right, guaranteed under the Constitution of"
India. Constitutional 97th Amendment Act also inserted a
new Article 43B with reads as follows :-
“the State shall endeavour to promote voluntary
"formation, autonomous functioning, democratic"
control and professional management of co-
operative societies”.
"21. By virtue of the above-mentioned amendment, Part IX-"
B was also inserted containing Articles 243ZH to 243ZT.
"Cooperative Societies are, however, not treated as units of"
"self-government, like Panchayats and Municipalities."
22. Article 243(ZL) dealing with the supersession and
suspension of board and interim management states that
notwithstanding anything contained in any law for the time
"being in force, no board shall be superseded or kept under"
suspension for a period exceeding six months. It provided
further that the Board of any such co-operative society shall
not be superseded or kept under suspension where there is
no government shareholding or loan or financial assistance
Page 21
22
or any guarantee by the Government. Such a constitutional
restriction has been placed after recognizing the fact that
there are co-operative societies with no government share
holding or loan or financial assistance or any guarantee by
the government.
23. Co-operative society is a state subject under Entry 32
List I Seventh Schedule to the Constitution of India. Most of
the States in India enacted their own Co-operative Societies
Act with a view to provide for their orderly development of
the cooperative sector in the state to achieve the objects of
"equity, social justice and economic development, as"
"envisaged in the Directive Principles of State Policy,"
enunciated in the Constitution of India. For co-operative
"societies working in more than one State, The Multi State Co-"
"operative Societies Act, 1984 was enacted by the Parliament"
under Entry 44 List I of the Seventh Schedule of the
Constitution. Co-operative society is essentially an
association or an association of persons who have come
Page 22
23
together for a common purpose of economic development or
for mutual help.
Right to Information Act
24. The RTI Act is an Act enacted to provide for citizens to
"secure, access to information under the control of public"
authorities and to promote transparency and accountability
in the working of every public authority. The preamble of
the Act reads as follows:
“An Act to provide for setting out the
practical regime of right to information for citizens
to secure access to information under the control
"of public authorities, in order to promote"
transparency and accountability in the working of
"every public authority, the constitution of a"
Central Information Commission and State
Information Commissions and for matters
connected therewith or incidental thereto.
WHEREAS the Constitution of India has
established democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of information
which are vital to its functioning and also to
contain corruption and to hold Governments and
their instrumentalities accountable to the
governed;
Page 23
24
AND WHEREAS revelation of information in
actual practice is likely to conflict with other public
interests including efficient operations of the
"Governments, optimum use of limited fiscal"
resources and the preservation of confidentiality of
sensitive information;
AND WHEREAS it is necessary to harmonise
these conflicting interests while preserving the
paramountcy of the democratic ideal;
"NOW, THEREFORE, it is expedient to provide"
for furnishing certain information to citizens who
desire to have it.”
25. Every public authority is also obliged to maintain all its
record duly catalogued and indexed in a manner and the
form which facilitates the right to information under this Act
and ensure that all records that are appropriate to be
"computerized are, within a reasonable time and subject to"
"availability of resources, computerized and connected"
through a network all over the country on different systems
so that access to such record is facilitated. Public authority
"has also to carry out certain other functions also, as provided"
under the Act.
26. The expression “public authority” is defined under
"Section 2(h) of the RTI Act, which reads as follows:"
Page 24
25
"“2. Definitions._ In this Act, unless the context"
otherwise requires :
"(h) ""public authority"" means any authority or"
body or institution of self-government
established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State
Legislature;
(d) by notification issued or order made by
"the appropriate Government, and"
includes any—
"(i) body owned, controlled or"
substantially financed;
(ii) non-Government organisation
"substantially financed, directly or"
indirectly by funds provided by the
appropriate Government”
"27. Legislature, in its wisdom, while defining the expression"
"“public authority” under Section 2(h), intended to embrace"
"only those categories, which are specifically included, unless"
the context of the Act otherwise requires. Section 2(h) has
used the expressions ‘means’ and includes’. When a word is
"defined to ‘mean’ something, the definition is prima facie"
restrictive and where the word is defined to ‘include’ some
Page 25
26
"other thing, the definition is prima facie extensive. But when"
"both the expressions “means” and “includes” are used, the"
categories mentioned there would exhaust themselves.
Meanings of the expressions ‘means’ and ‘includes’ have
been explained by this Court in Delhi Development
Authority v. Bhola Nath Sharma (Dead) by LRs and
"others (2011) 2 SCC 54, (in paras 25 to 28). When such"
"expressions are used, they may afford an exhaustive"
"explanation of the meaning which for the purpose of the Act,"
must invariably be attached to those words and expressions.
28. Section 2(h) exhausts the categories mentioned
therein. The former part of 2(h) deals with:
(1) an authority or body or institution of self-government
"established by or under the Constitution,"
(2) an authority or body or institution of self-
government established or constituted by any other
"law made by the Parliament,"
(3) an authority or body or institution of self-government
established or constituted by any other law made by
"the State legislature, and"
Page 26
27
(4) an authority or body or institution of self-government
established or constituted by notification issued or
order made by the appropriate government.
"29. Societies, with which we are concerned, admittedly, do"
"not fall in the above mentioned categories, because none of"
"them is either a body or institution of self-government,"
"established or constituted under the Constitution, by law"
"made by the Parliament, by law made by the State"
Legislature or by way of a notification issued or made by the
appropriate government. Let us now examine whether they
"fall in the later part of Section 2(h) of the Act, which"
embraces within its fold:
"(5) a body owned, controlled or substantially financed,"
directly or indirectly by funds provided by the
"appropriate government,"
(6) non-governmental organizations substantially financed
directly or indirectly by funds provided by the
appropriate government.
30 The expression ‘Appropriate Government’ has also
"been defined under Section 2(a) of the RTI Act, which reads"
as follows :
Page 27
28
“2(a). “appropriate Government” means in
relation to a public authority which is
"established, constituted, owned, controlled"
or substantially financed by funds provided
directly or indirectly-
(i) by the Central Government or the
"Union territory administration, the"
Central Government;
"(ii) by the State Government, the State"
Government.”
"31. The RTI Act, therefore, deals with bodies which are"
"owned, controlled or substantially financed, directly or"
"indirectly, by funds provided by the appropriate government"
and also non-government organizations substantially
"financed, directly or indirectly, by funds provided by the"
"appropriate government, in the event of which they may fall"
within the definition of Section 2(h)(d)(i) or (ii) respectively.
"As already pointed out, a body, institution or an organization,"
which is neither a State within the meaning of Article 12 of
"the Constitution or instrumentalities, may still answer the"
definition of public authority under Section 2(h)d (i) or (ii).
(a) Body owned by the appropriate government – A
body owned by the appropriate government clearly falls
"under Section 2(h)(d)(i) of the Act. A body owned, means to"
Page 28
29
have a good legal title to it having the ultimate control over
"the affairs of that body, ownership takes in its fold control,"
finance etc. Further discussion of this concept is
"unnecessary because, admittedly, the societies in question"
are not owned by the appropriate government.
(b) Body Controlled by the Appropriate Government
A body which is controlled by the appropriate
government can fall under the definition of public authority
under Section 2h(d)(i). Let us examine the meaning of the
expression “controlled” in the context of RTI Act and not in
the context of the expression “controlled” judicially
interpreted while examining the scope of the expression
“State” under Article 12 of the Constitution or in the context
of maintainability of a writ against a body or authority under
Article 226 of the Constitution of India. The word
"“control” or “controlled” has not been defined in the RTI Act,"
"and hence, we have to understand the scope of the"
expression ‘controlled’ in the context of the words which
exist prior and subsequent i.e. “body owned” and
Page 29
30
“substantially financed” respectively. The meaning of the
word “control” has come up for consideration in several
cases before this Court in different contexts. In State of
"West Bengal and another v. Nripendra Nath Bagchi,"
AIR 1966 SC 447 while interpreting the scope of Article 235
"of the Constitution of India, which confers control by the"
"High Court over District Courts, this Court held that the word"
“control” includes the power to take disciplinary action and
all other incidental or consequential steps to effectuate this
end and made the following observations :
"“The word ‘control’, as we have seen, was used for"
the first time in the Constitution and it is
accompanied by the word ‘vest’ which is a strong
word. It shows that the High Court is made the
sole custodian of the control over the judiciary.
"Control, therefore, is not merely the power to"
arrange the day to day working of the court but
contemplates disciplinary jurisdiction over the
"presiding Judge.... In our judgment, the control"
which is vested in the High Court is a complete
control subject only to the power of the Governor
in the matter of appointment (including dismissal
and removal) and posting and promotion of
District Judges. Within the exercise of the control
"vested in the High Court, the High Court can hold"
"enquiries, impose punishments other than"
"dismissal or removal, ...”"
Page 30
31
32. The above position has been reiterated by this Court in
Chief Justice of Andhra Pradesh and others v. L.V.A.
Dixitulu and others (1979) 2 SCC 34. In Corporation of
"the City of Nagpur Civil Lines, Nagpur and another v."
"Ramchandra and others (1981) 2 SCC 714, while"
interpreting the provisions of Section 59(3) of the City of
"Nagpur Corporation Act, 1948, this Court held as follows :"
“4. It is thus now settled by this Court that the
term “control” is of a very wide connotation and
amplitude and includes a large variety of powers
which are incidental or consequential to achieve
the powers-vested in the authority
concerned…….”
33. The word “control” is also sometimes used synonyms
"with superintendence, management or authority to direct,"
restrict or regulate by a superior authority in exercise of its
supervisory power. This Court in The Shamrao Vithal Co-
operative Bank Ltd. v. Kasargode Pandhuranga
"Mallya (1972) 4 SCC 600, held that the word “control” does"
not comprehend within itself the adjudication of a claim
made by a co-operative society against its members. The
Page 31
32
meaning of the word “control” has also been considered by
this Court in State of Mysore v. Allum Karibasappa &
"Ors. (1974) 2 SCC 498, while interpreting Section 54 of the"
"Mysore Cooperative Societies Act, 1959 and Court held that"
"the word “control” suggests check, restraint or influence and"
intended to regulate and hold in check and restraint from
action. The expression “control” again came up for
consideration before this Court in Madan Mohan
"Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in"
the context of Article 235 of the Constitution and the Court
held that the expression “control” includes disciplinary
"control, transfer, promotion, confirmation, including transfer"
of a District Judge or recall of a District Judge posted on ex-
cadre post or on deputation or on administrative post etc. so
also premature and compulsory retirement. Reference may
also be made to few other judgments of this Court reported
in Gauhati High Court and another v. Kuladhar Phukan
"and another (2002) 4 SCC 524, State of Haryana v."
"Inder Prakash Anand HCS and others (1976) 2 SCC 977,"
High Court of Judicature for Rajasthan v. Ramesh
Page 32
33
"Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya"
"Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628,"
TMA Pai Foundation and others v. State of Karnataka
"(2002) 8 SCC 481, Ram Singh and others v. Union"
"Territory, Chandigarh and others (2004) 1 SCC 126, etc."
34. We are of the opinion that when we test the meaning of
expression “controlled” which figures in between the words
"“body owned” and “substantially financed”, the control by"
the appropriate government must be a control of a
substantial nature. The mere ‘supervision’ or ‘regulation’ as
such by a statute or otherwise of a body would not make
that body a “public authority” within the meaning of Section
2(h)(d)(i) of the RTI Act. In other words just like a body
owned or body substantially financed by the appropriate
"government, the control of the body by the appropriate"
government would also be substantial and not merely
supervisory or regulatory. Powers exercised by the Registrar
of Cooperative Societies and others under the Cooperative
"Societies Act are only regulatory or supervisory in nature,"
Page 33
34
which will not amount to dominating or interfering with the
management or affairs of the society so as to be controlled.
Management and control are statutorily conferred on the
Management Committee or the Board of Directors of the
Society by the respective Cooperative Societies Act and not
on the authorities under the Co-operative Societies Act.
"35. We are, therefore, of the view that the word"
“controlled” used in Section 2(h)(d)(i) of the Act has to be
understood in the context in which it has been used vis-a-vis
a body owned or substantially financed by the appropriate
"government, that is the control of the body is of such a"
degree which amounts to substantial control over the
management and affairs of the body.
SUBSTANTIALLY FINANCED
36. The words “substantially financed” have been used in
"Sections 2(h)(d)(i) & (ii), while defining the expression public"
Page 34
35
"authority as well as in Section 2(a) of the Act, while defining"
the expression “appropriate Government”. A body can be
"substantially financed, directly or indirectly by funds"
provided by the appropriate Government. The expression
"“substantially financed”, as such, has not been defined"
under the Act. “Substantial” means “in a substantial
manner so as to be substantial”. In Palser v. Grimling
"(1948) 1 All ER 1, 11 (HL), while interpreting the provisions"
of Section 10(1) of the Rent and Mortgage Interest
"Restrictions Act, 1923, the House of Lords held that"
“substantial” is not the same as “not unsubstantial” i.e. just
enough to avoid the de minimis principle. The word
"“substantial” literally means solid, massive etc. Legislature"
has used the expression “substantially financed” in Sections
2(h)(d)(i) and (ii) indicating that the degree of financing must
"be actual, existing, positive and real to a substantial extent,"
"not moderate, ordinary, tolerable etc."
37. We often use the expressions “questions of law” and
“substantial questions of law” and explain that any question
Page 35
36
of law affecting the right of parties would not by itself be a
substantial question of law. In Black's Law Dictionary
"(6th Edn.), the word 'substantial' is defined as 'of real worth"
and importance; of considerable value; valuable. Belonging
to substance; actually existing; real: not seeming or
imaginary; not illusive; solid; true; veritable. Something
worthwhile as distinguished from something without value or
merely nominal. Synonymous with material.' The word
'substantially' has been defined to mean 'essentially; without
material qualification; in the main; in substance; materially.'
"In the Shorter Oxford English Dictionary (5th Edn.), the word"
'substantial' means 'of ample or considerable amount of size;
"sizeable, fairly large; having solid worth or value, of real"
"significance; sold; weighty; important, worthwhile; of an act,"
"measure etc. having force or effect, effective, thorough.' The"
word 'substantially' has been defined to mean 'in substance;
"as a substantial thing or being; essentially, intrinsically.'"
Therefore the word 'substantial' is not synonymous with
'dominant' or 'majority'. It is closer to 'material' or
'important' or 'of considerable value.' 'Substantially' is closer
Page 36
37
to 'essentially'. Both words can signify varying degrees
depending on the context.
"38. Merely providing subsidiaries, grants, exemptions,"
"privileges etc., as such, cannot be said to be providing"
"funding to a substantial extent, unless the record shows that"
the funding was so substantial to the body which practically
"runs by such funding and but for such funding, it would"
struggle to exist. The State may also float many schemes
generally for the betterment and welfare of the cooperative
"sector like deposit guarantee scheme, scheme of assistance"
"from NABARD etc., but those facilities or assistance cannot"
be termed as “substantially financed” by the State
Government to bring the body within the fold of “public
"authority” under Section 2(h)(d)(i) of the Act. But, there are"
"instances, where private educational institutions getting"
ninety five per cent grant-in-aid from the appropriate
"government, may answer the definition of public authority"
under Section 2(h)(d)(i).
Page 37
38
NON-GOVERNMENT ORGANISATIONS:
"39. The term “Non-Government Organizations” (NGO), as"
"such, is not defined under the Act. But, over a period of"
"time, the expression has got its own meaning and, it has to"
"be seen in that context, when used in the Act. Government"
"used to finance substantially, several non-government"
"organizations, which carry on various social and welfare"
"activities, since those organizations sometimes carry on"
"functions which are otherwise governmental. Now, the"
"question, whether an NGO has been substantially financed or"
"not by the appropriate Government, may be a question of"
"fact, to be examined by the authorities concerned under the"
RTI Act. Such organization can be substantially financed
either directly or indirectly by funds provided by the
appropriate Government. Government may not have any
"statutory control over the NGOs, as such, still it can be"
established that a particular NGO has been substantially
financed directly or indirectly by the funds provided by the
"appropriate Government, in such an event, that organization"
Page 38
39
will fall within the scope of Section 2(h)(d)(ii) of the RTI Act.
"Consequently, even private organizations which are, though"
not owned or controlled but substantially financed by the
appropriate Government will also fall within the definition of
“public authority” under Section 2(h)(d)(ii) of the Act.
BURDEN TO SHOW:
"40. The burden to show that a body is owned, controlled or"
substantially financed or that a non-government
organization is substantially financed directly or indirectly by
the funds provided by the appropriate Government is on the
applicant who seeks information or the appropriate
Government and can be examined by the State Information
Commission or the Central Information Commission as the
"case may be, when the question comes up for consideration."
"A body or NGO is also free to establish that it is not owned,"
controlled or substantially financed directly or indirectly by
the appropriate Government.
Page 39
40
41. Powers have been conferred on the Central Information
Commissioner or the State Information Commissioner under
Section 18 of the Act to inquire into any complaint received
from any person and the reason for the refusal to access to
"any information requested from a body owned, controlled or"
"substantially financed, or a non-government organization"
substantially financed directly or indirectly by the funds
provided by the appropriate Government. Section 19 of the
Act provides for an appeal against the decision of the Central
Information Officer or the State Information Officer to such
officer who is senior in rank to the Central Information
"Officer or the State Information Officer, as the case may be,"
"in each public authority. Therefore, there is inbuilt"
mechanism in the Act itself to examine whether a body is
"owned, controlled or substantially financed or an NGO is"
"substantially financed, directly or indirectly, by funds"
provided by the appropriate authority.
42. Legislative intention is clear and is discernible from
"Section 2(h) that intends to include various categories,"
Page 40
41
discussed earlier. It is trite law that the primarily language
employed is the determinative factor of the legislative
intention and the intention of the legislature must be found
in the words used by the legislature itself. In Magor and
St. Mellons Rural District Council v. New Port
Corporation (1951) 2 All ER 839(HL) stated that the courts
are warned that they are not entitled to usurp the legislative
function under the guise of interpretation. This Court in
D.A. Venkatachalam and others v. Dy. Transport
"Commissioner and others (1977) 2 SCC 273, Union of"
India v. Elphinstone Spinning and Weaving Co. Ltd.
"and others (2001) 4 SCC 139, District Mining Officer"
and others v. Tata Iron & Steel Co. and another (2001)
"7 SCC 358, Padma Sundara Rao (Dead) and others v."
"State of Tamil Nadu and others (2002) 3 SCC 533,"
Maulvi Hussain Haji Abraham Umarji v. State of
Gujarat and another (2004) 6 SCC 672 held that the court
must avoid the danger of an apriori determination of the
meaning of a provision based on their own preconceived
notions of ideological structure or scheme into which the
Page 41
42
provisions to be interpreted is somehow fitted. It is trite law
"that words of a statute are clear, plain and unambiguous i.e."
"they are reasonably susceptible to only one meaning, the"
courts are bound to give effect to that meaning irrespective
"of the consequences, meaning thereby when the language is"
"clear and unambiguous and admits of only one meaning, no"
"question of construction of a statute arises, for the statute"
speaks for itself. This Court in Kanai Lal Sur v.
Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the
words used are capable of one construction only then it
would not be open to courts to adopt any other hypothetical
construction on the ground that such construction is more
consistent with the alleged object and policy of the Act.”
43. We are of the view that the High Court has given a
complete go-bye to the above-mentioned statutory
principles and gone at a tangent by mis-interpreting the
meaning and content of Section 2(h) of the RTI Act. Court
has given a liberal construction to expression “public
"authority” under Section 2(h) of the Act, bearing in mind the"
Page 42
43
“transformation of law” and its “ultimate object” i.e. to
"achieve “transparency and accountability”, which according"
to the court could alone advance the objective of the Act.
"Further, the High Court has also opined that RTI Act will"
certainly help as a protection against the mismanagement of
the society by the managing committee and the society’s
liabilities and that vigilant members of the public body by
"obtaining information through the RTI Act, will be able to"
"detect and prevent mismanagement in time. In our view,"
the categories mentioned in Section 2(h) of the Act exhaust
"themselves, hence, there is no question of adopting a liberal"
construction to the expression “public authority” to bring in
"other categories into its fold, which do not satisfy the tests"
"we have laid down. Court cannot, when language is clear"
"and unambiguous, adopt such a construction which,"
"according to the Court, would only advance the objective of"
the Act. We are also aware of the opening part of the
definition clause which states “unless the context otherwise
requires”. No materials have been made available to show
"that the cooperative societies, with which we are concerned,"
Page 43
44
"in the context of the Act, would fall within the definition of"
Section 2(h) of the Act.
Right to Information and the Right to Privacy
44. People’s right to have access to an official information
finds place in Resolution 59(1) of the UN General Assembly
held in 1946. It states that freedom of information is a
fundamental human right and the touchstone to all the
freedoms to which the United Nations is consecrated. India
is a party to the International Covenant on Civil and Political
Rights and hence India is under an obligation to effectively
guarantee the right to information. Article 19 of the
Universal Declaration of Human Rights also recognizes right
to information. Right to information also emanates from the
fundamental right guaranteed to citizens under Article 19(1)
(a) of the Constitution of India. Constitution of India does not
explicitly grant a right to information. In Bennet Coleman
& Co. and others Vs. Union of India and others (1972)
"2 SCC 788, this Court observed that it is indisputable that by"
"“Freedom of Press” meant the right of all citizens to speak,"
Page 44
45
publish and express their views and freedom of speech and
expression includes within its compass the right of all
citizens to read and be informed. In Union of India Vs.
Association of Democratic Reforms and another (2002)
"5 SCC 294, this Court held that the right to know about the"
antecedents including criminal past of the candidates
contesting the election for Parliament and State Assembly is
a very important and basic facets for survival of democracy
"and for this purpose, information about the candidates to be"
selected must be disclosed. In State of U.P. Vs. Raj
"Narain and others (1975) 4 SCC 428, this Court recognized"
that the right to know is the right that flows from the right of
freedom of speech and expression guaranteed under Article
19(1)(a) of the Constitution. In People’s Union for Civil
Liberties (PUCL) and others Vs. Union of India and
"another (2003) 4 SCC 399, this Court observed that the"
right to information is a facet of freedom of speech and
expression contained in Article 19(1)(a) of the Constitution of
India. Right to information thus indisputably is a
Page 45
46
"fundamental right, so held in several judgments of this"
"Court, which calls for no further elucidation."
"45. The Right to Information Act, 2005 is an Act which"
provides for setting up the practical regime of right to
information for citizens to secure access to information
under the control of public authorities in order to promote
transparency and accountability in the working of every
public authority. Preamble of the Act also states that the
democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to
contain corruption and to hold Governments and their
instrumentalities accountable to the governed. Citizens
"have, however, the right to secure access to information of"
only those matters which are “under the control of public
"authorities”, the purpose is to hold “Government and its"
instrumentalities” accountable to the governed.
"Consequently, though right to get information is a"
fundamental right guaranteed under Article 19(1)(a) of the
"Constitution, limits are being prescribed under the Act itself,"
Page 46
47
which are reasonable restrictions within the meaning of
Article 19(2) of the Constitution of India.
46. Right to privacy is also not expressly guaranteed under
"the Constitution of India. However, the Privacy Bill, 2011 to"
provide for the right to privacy to citizens of India and to
"regulate the collection, maintenance and dissemination of"
their personal information and for penalization for violation
"of such rights and matters connected therewith, is pending."
In several judgments including Kharak Singh Vs. State of
"U.P. and others AIR 1963 SC 1295, R. Rajagopal alias"
R.R. Gopal and another Vs. State of Tamil Nadu and
"others (1994) 6 SCC 632, People’s Union for Civil"
Liberties (PUCL) Vs. Union of India and another (1997)
1 SCC 301 and State of Maharashtra Vs. Bharat Shanti
"Lal Shah and others (2008) 13 SCC 5, this Court has"
recognized the right to privacy as a fundamental right
emanating from Article 21 of the Constitution of India. Right
to privacy is also recognized as a basic human right under
Page 47
48
"Article 12 of the Universal Declaration of Human Rights Act,"
"1948, which states as follows:"
“No one shall be subjected to arbitrary
"interference with his privacy, family, home or"
"correspondence, not to attack upon his honour"
and reputation. Everyone has the right to the
protection of law against such interference or
attacks.”
Article 17 of the International Covenant on Civil and Political
"Rights Act, 1966, to which India is a party also protects that"
right and states as follows:
“No one shall be subjected to arbitrary or unlawful
"interference with his privacy, family, home and"
correspondence nor to unlawful attacks on his
honour and reputation….”
This Court in R. Rajagopal (supra) held as follows :-
“The right to privacy is implicit in the right to life
and liberty guaranteed to the citizens of this
country by Article 21. It is a “right to be let
alone”. A citizen has a right to safeguard the
"privacy of his own, his family, marriage,"
"procreation, motherhood, child bearing and"
education among other matters.”
Page 48
49
Restrictions and Limitations:
"47. Right to information and Right to privacy are, therefore,"
"not absolute rights, both the rights, one of which falls under"
Article 19(1)(a) and the other under Article 21 of the
"Constitution of India, can obviously be regulated, restricted"
and curtailed in the larger public interest. Absolute or
uncontrolled individual rights do not and cannot exist in any
modern State. Citizens’ right to get information is statutorily
"recognized by the RTI Act, but at the same time limitations"
"are also provided in the Act itself, which is discernible from"
"the Preamble and other provisions of the Act. First of all, the"
scope and ambit of the expression “public authority” has
been restricted by a statutory definition under Section 2(h)
limiting it to the categories mentioned therein which exhaust
"itself, unless the context otherwise requires. Citizens, as"
"already indicated by us, have a right to get information, but"
can have access only to the information “held” and under
"the “control of public authorities”, with limitations. If the"
Page 49
50
"information is not statutorily accessible by a public authority,"
"as defined in Section 2(h) of the Act, evidently, those"
information will not be under the “control of the public
"authority”. Resultantly, it will not be possible for the citizens"
to secure access to those information which are not under
"the control of the public authority. Citizens, in that event,"
"can always claim a right to privacy, the right of a citizen to"
"access information should be respected, so also a citizen’s"
right to privacy.
48. Public authority also is not legally obliged to give or
"provide information even if it is held, or under its control, if"
that information falls under clause (j) of Sub-section (1) of
Section 8. Section 8(1)(j) is of considerable importance so
"far as this case is concerned, hence given below, for ready"
reference:-
“8. Exemption from disclosure of
information – (1) Notwithstanding anything
"contained in this Act, there shall be no obligation"
to give any citizen –
(a) to (i) xxx xxx xxx
Page 50
51
(j) information which relates to personal
information the disclosure of which has no
"relationship to any public activity or interest, or"
which would cause unwarranted invasion of the
privacy of the individual unless the Central Public
Information Officer or the State Public Information
"Officer or the appellate authority, as the case may"
"be, is satisfied that the larger public interest"
justifies the disclosure of such information:
Provided that the information which cannot be
denied to the Parliament or a State Legislature
shall not be denied to any person.”
"49. Section 8 begins with a non obstante clause, which"
"gives that Section an overriding effect, in case of conflict,"
"over the other provisions of the Act. Even if, there is any"
"indication to the contrary, still there is no obligation on the"
public authority to give information to any citizen of what
"has been mentioned in clauses (a) to (j). Public authority,"
"as already indicated, cannot access all the information from"
"a private individual, but only those information which he is"
"legally obliged to pass on to a public authority by law, and"
also only those information to which the public authority can
have access in accordance with law. Even those
"information, if personal in nature, can be made available"
only subject to the limitations provided in Section 8(j) of the
Page 51
52
"RTI Act. Right to be left alone, as propounded in Olmstead"
v. The United States reported in 1927 (277) US 438 is the
most comprehensive of the rights and most valued by
civilized man.
50. Recognizing the fact that the right to privacy is a
"sacrosanct facet of Article 21 of the Constitution, the"
legislation has put a lot of safeguards to protect the rights
"under Section 8(j), as already indicated. If the information"
sought for is personal and has no relationship with any
public activity or interest or it will not sub-serve larger public
"interest, the public authority or the officer concerned is not"
legally obliged to provide those information. Reference may
be made to a recent judgment of this Court in Girish
Ramchandra Deshpande v. Central Information
"Commissioner and others (2013) 1 SCC 212, wherein this"
Court held that since there is no bona fide public interest in
"seeking information, the disclosure of said information would"
cause unwarranted invasion of privacy of the individual
"under Section 8(1)(j) of the Act. Further, if the authority"
Page 52
53
finds that information sought for can be made available in
"the larger public interest, then the officer should record his"
"reasons in writing before providing the information, because"
"the person from whom information is sought for, has also a"
right to privacy guaranteed under Article 21 of the
Constitution.
"51. We have found, on facts, that the Societies, in these"
"appeals, are not public authorities and, hence, not legally"
obliged to furnish any information sought for by a citizen
"under the RTI Act. All the same, if there is any dispute on"
facts as to whether a particular Society is a public authority
"or not, the State Information Commission can examine the"
same and find out whether the Society in question satisfies
"the test laid in this judgment. Now, the next question is"
whether a citizen can have access to any information of
these Societies through the Registrar of Cooperative
"Societies, who is a public authority within the meaning of"
Section 2(h) of the Act.
Registrar of Cooperative Societies
Page 53
54
52. Registrar of Cooperative Societies functioning under the
Cooperative Societies Act is a public authority within the
"meaning of Section 2(h) of the Act. As a public authority,"
Registrar of Co-operative Societies has been conferred with
lot of statutory powers under the respective Act under which
he is functioning. He is also duty bound to comply with the
obligations under the RTI Act and furnish information to a
citizen under the RTI Act. Information which he is expected
to provide is the information enumerated in Section 2(f) of
the RTI Act subject to the limitations provided under Section
"8 of the Act. Registrar can also, to the extent law permits,"
"gather information from a Society, on which he has"
supervisory or administrative control under the Cooperative
"Societies Act. Consequently, apart from the information as is"
"available to him, under Section 2(f), he can also gather those"
"information from the Society, to the extent permitted by law."
Registrar is also not obliged to disclose those information if
those information fall under Section 8(1)(j) of the Act. No
"provision has been brought to our knowledge indicating that,"
Page 54
55
"under the Cooperative Societies Act, a Registrar can call for"
the details of the bank accounts maintained by the citizens
or members in a cooperative bank. Only those information
which a Registrar of Cooperative Societies can have access
under the Cooperative Societies Act from a Society could be
said to be the information which is “held” or “under the
"control of public authority”. Even those information,"
"Registrar, as already indicated, is not legally obliged to"
provide if those information falls under the exempted
category mentioned in Section 8(j) of the Act. Apart from
"the Registrar of Co-operative Societies, there may be other"
public authorities who can access information from a Co-
operative Bank of a private account maintained by a
"member of Society under law, in the event of which, in a"
"given situation, the society will have to part with that"
information. But the demand should have statutory backing.
"53. Consequently, an information which has been sought"
"for relates to personal information, the disclosure of which"
has no relationship to any public activity or interest or which
Page 55
56
would cause unwarranted invasion of the privacy of the
"individual, the Registrar of Cooperative Societies, even if he"
"has got that information, is not bound to furnish the same to"
"an applicant, unless he is satisfied that the larger public"
"interest justifies the disclosure of such information, that too,"
for reasons to be recorded in writing.
"54. We, therefore, hold that the Cooperative Societies"
registered under the Kerala Co-operative Societies Act will
not fall within the definition of “public authority” as defined
under Section 2(h) of the RTI Act and the State Government
letter dated 5.5.2006 and the circular dated 01.06.2006
"issued by the Registrar of Co-operative Societies, Kerala, to"
"the extent, made applicable to societies registered under the"
Kerala Co-operative Societies Act would stand quashed in
"the absence of materials to show that they are owned,"
controlled or substantially financed by the appropriate
"Government. Appeals are, therefore, allowed as above,"
"however, with no order as to costs."
Page 56
57
………..………………….J.
(K.S. Radhakrishnan)
……………………………J.
(A.K. Sikri)
"New Delhi,"
"October 07, 2013"
Page 57
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 9017 OF 2013
(Arising out of SLP (C) No.24290 of 2012)
Thalappalam Ser. Coop. Bank
Ltd. and others Appellants
Versus
State of Kerala and others
Respondents
WITH
"CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013"
"(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797"
of 2013)
J U D G M E N T
"K.S. Radhakrishnan, J."
1. Leave granted.
"2. We are, in these appeals, concerned with the question"
whether a co-operative society registered under the Kerala
"Co-operative Societies Act, 1969 (for short “the Societies"
Page 1
2
Act”) will fall within the definition of “public authority” under
"Section 2(h) of the Right to Information Act, 2005 (for short"
“the RTI Act”) and be bound by the obligations to provide
information sought for by a citizen under the RTI Act.
"3. A Full Bench of the Kerala High Court, in its judgment"
"reported in AIR 2012 Ker 124, answered the question in the"
affirmative and upheld the Circular No.23 of 2006 dated
"01.06.2006, issued by the Registrar of the Co-operative"
"Societies, Kerala stating that all the co-operative institutions"
"coming under the administrative control of the Registrar, are"
“public authorities” within the meaning of Section 2(h) of the
RTI Act and obliged to provide information as sought for.
The question was answered by the Full Bench in view of the
conflicting views expressed by a Division Bench of the Kerala
"High Court in Writ Appeal No.1688 of 2009, with an earlier"
judgment of the Division Bench reported in Thalapalam
Service Co-operative Bank Ltd. v. Union of India AIR
"2010 Ker 6, wherein the Bench took the view that the"
question as to whether a co-operative society will fall under
Page 2
3
"Section 2(h) of the RTI Act is a question of fact, which will"
depend upon the question whether it is substantially
"financed, directly or indirectly, by the funds provided by the"
"State Government which, the Court held, has to be decided"
depending upon the facts situation of each case.
"4. Mr. K. Padmanabhan Nair, learned senior counsel"
appearing for some of the societies submitted that the views
expressed by the Division Bench in Thalapalam Service
"Co-operative Bank Ltd. (supra) is the correct view, which"
calls for our approval. Learned senior counsel took us
through the various provisions of the Societies Act as well as
of the RTI Act and submitted that the societies are
autonomous bodies and merely because the officers
functioning under the Societies Act have got supervisory
control over the societies will not make the societies public
authorities within the meaning of Section 2(h) of the RTI Act.
Learned senior counsel also submitted that these societies
"are not owned, controlled or substantially financed, directly"
"or indirectly, by the State Government. Learned senior"
Page 3
4
counsel also submitted that the societies are not statutory
bodies and are not performing any public functions and will
not come within the expression “state” within the meaning
under Article 12 of the Constitution of India.
"5. Mr. Ramesh Babu MR, learned counsel appearing for"
"the State, supported the reasoning of the impugned"
judgment and submitted that such a circular was issued by
the Registrar taking into consideration the larger public
interest so as to promote transparency and accountability in
the working of every co-operative society in the State of
Kerala. Reference was also made to various provisions of
the Societies Act and submitted that those provisions would
indicate that the Registrar has got all pervading control over
"the societies, including audit, enquiry and inspection and the"
power to initiate surcharge proceedings. Power is also
vested on the Registrar under Section 32 of the Societies Act
to supersede the management of the society and to appoint
an administrator. This would indicate that though societies
"are body corporates, they are under the statutory control of"
Page 4
5
the Registrar of Co-operative Societies. Learned counsel
submitted that in such a situation they fall under the
definition of “pubic authority” within the meaning of Section
"2(h) of the RTI Act. Shri Ajay, learned counsel appearing for"
"the State Information Commission, stated that the"
applicability of the RTI Act cannot be excluded in terms of
the clear provision of the Act and they are to be interpreted
to achieve the object and purpose of the Act. Learned
counsel submitted that at any rate having regard to the
"definition of “information” in Section 2(f) of the Act, the"
access to information in relation to Societies cannot be
denied to a citizen.
Facts:
"6. We may, for the disposal of these appeals, refer to the"
facts pertaining to Mulloor Rural Co-operative Society Ltd. In
"that case, one Sunil Kumar stated to have filed an"
application dated 8.5.2007 under the RTI Act seeking
particulars relating to the bank accounts of certain members
"of the society, which the society did not provide. Sunil"
Page 5
6
Kumar then filed a complaint dated 6.8.2007 to the State
"Information Officer, Kerala who, in turn, addressed a letter"
dated 14.11.2007 to the Society stating that application filed
"by Sunil Kumar was left unattended. Society, then, vide"
letter dated 24.11.2007 informed the applicant that the
information sought for is “confidential in nature” and one
"warranting “commercial confidence”. Further, it was also"
pointed out that the disclosure of the information has no
relationship to any “public activity” and held by the society
"in a “fiduciary capacity”. Society was, however, served with"
an order dated 16.1.2008 by the State Information
"Commission, Kerala, stating that the Society has violated the"
mandatory provisions of Section 7(1) of the RTI Act
rendering themselves liable to be punished under Section 20
of the Act. State Information Officer is purported to have
relied upon a circular No.23/2006 dated 01.06.2006 issued
"by the Registrar, Co-operative Societies bringing in all"
societies under the administrative control of the Registrar of
"Co-operative Societies, as “public authorities” under Section"
2(h) of the RTI Act.
Page 6
7
7. Mulloor Co-operative Society then filed Writ Petition
"No.3351 of 2008 challenging the order dated 16.1.2008,"
which was heard by a learned Single Judge of the High Court
along with other writ petitions. All the petitions were
disposed of by a common judgment dated 03.04.2009
holding that all co-operative societies registered under the
Societies Act are public authorities for the purpose of the RTI
Act and are bound to act in conformity with the obligations in
Chapter 11 of the Act and amenable to the jurisdiction of the
State Information Commission. The Society then preferred
Writ Appeal No.1688 of 2009. While that appeal was
"pending, few other appeals including WA No.1417 of 2009,"
filed against the common judgment of the learned Single
Judge dated 03.04.2009 came up for consideration before
another Division Bench of the High Court which set aside the
"judgment of the learned Single Judge dated 03.04.2009, the"
judgment of which is reported in AIR 2010 Ker 6. The Bench
held that the obedience to Circular No.23 dated 1.6.2006 is
optional in the sense that if the Society feels that it satisfies
Page 7
8
"the definition of Section 2(h), it can appoint an Information"
Officer under the RTI Act or else the State Information
Commissioner will decide when the matter reaches before
"him, after examining the question whether the Society is"
"substantially financed, directly or indirectly, by the funds"
"provided by the State Government. The Division Bench,"
"therefore, held that the question whether the Society is a"
public authority or not under Section 2(h) is a disputed
question of fact which has to be resolved by the authorities
under the RTI Act.
8. Writ Appeal No.1688 of 2009 later came up before
"another Division Bench, the Bench expressed some"
reservations about the views expressed by the earlier
Division Bench in Writ Appeal No.1417 of 2009 and vide its
"order dated 24.3.2011 referred the matter to a Full Bench, to"
examine the question whether co-operative societies
registered under the Societies Act are generally covered
under the definition of Section 2(h) of the RTI Act. The Full
Bench answered the question in the affirmative giving a
Page 8
9
"liberal construction of the words “public authority”, bearing"
"in mind the “transformation of law” which, according to the"
"Full Bench, is to achieve transparency and accountability"
with regard to affairs of a public body.
"9. We notice, the issue raised in these appeals is of"
considerable importance and may have impact on similar
other Societies registered under the various State
enactments across the country.
10. The State of Kerala has issued a letter dated 5.5.2006
"to the Registrar of Co-operative Societies, Kerala with"
"reference to the RTI Act, which led to the issuance of Circular"
"No.23/2006 dated 01.06.2006, which reads as under:"
“G1/40332/05
"Registrar of Co-operative Societies,"
"Thiruvananthapuram, Dated 01.06.2006"
Circular No.23/2006
"Sub: Right to Information Act, 2005- Co-operative"
Institutions included in the definition of “Public Authority”
Ref: Governments Letter No.3159/P.S.1/06
Dated 05.05.2006
Page 9
10
"According to Right to Information Act, 2005, sub-section"
(1) and (2) of Section 5 of the Act severy public authority
within 100 days of the enactment of this Act designate as
many officers as public information officers as may be
necessary to provide information to persons requesting for
information under the Act. In this Act Section 2(h) defines
institutions which come under the definition of public
authority. As per the reference letter the government
"informed that, according to Section 2(h) of the Act all"
institutions formed by laws made by state legislature is a
“public authority” and therefore all co-operative
institutions coming under the administrative control of
The Registrar of co-operative societies are also public
authorities.
In the above circumstance the following directions are
issued:
1. All co-operative institutions coming under the
administrative control of the Registrar of co-operative
societies are “public authorities” under the Right to
"Information Act, 2005 (central law No.22 of 2005). Co-"
operative institutions are bound to give all information
"to applications under the RTI Act, if not given they will"
be subjected to punishment under the Act. For this all
co-operative societies should appoint public
information/assistant public information officers
immediately and this should be published in the
government website.
2. For giving information for applicants government order
No.8026/05/government administration department act
Page 10
11
and rule can be applicable and 10 rupees can be
charged as fees for each application. Also as per GAD
Act and rule and the government Order No.2383/06
dated 01.04.2006.
3. Details of Right to Information Act are available in the
government website (www.kerala.gov.in..... ) or right to
information gov.in ) other details regarding the Act are
also available in the government website.
4. Hereafter application for information from co-operative
institutions need not be accepted by the information
officers of this department. But if they get such
applications it should be given back showing the
reasons or should be forwarded to the respective co-
operative institutions with necessary directions and the
applicant should be informed about this. In this case it
is directed to follow the time limit strictly.
5. It is directed that all joint registrars/assistant registrars
should take immediate steps to bring this to the urgent
notice of all co-operative institutions. They should
inform to this office the steps taken within one week.
The Government Order No.2389/06 dated 01.04.2006 is
also enclosed.
Sd/-
V. Reghunath
Registrar of co-operative societies (in
charge)”
"11. The State Government, it is seen, vide its letter dated"
5.5.2006 has informed the Registrar of Co-operative
Page 11
12
"Societies that, as per Section 2(h) of the Act, all institutions"
formed by laws made by State Legislature is a “public
"authority” and, therefore, all co-operative institutions"
coming under the administrative control of the Registrar of
Co-operative Societies are also public authorities.
12. We are in these appeals concerned only with the co-
operative societies registered or deemed to be registered
"under the Co-operative Societies Act, which are not owned,"
controlled or substantially financed by the State or Central
"Government or formed, established or constituted by law"
made by Parliament or State Legislature.
Co-operative Societies and Article 12 of the
Constitution:
"13. We may first examine, whether the Co-operative"
"Societies, with which we are concerned, will fall within the"
expression “State” within the meaning of Article 12 of the
"Constitution of India and, hence subject to all constitutional"
limitations as enshrined in Part III of the Constitution. This
Page 12
13
Court in U.P. State Co-operative Land Development
Bank Limited v. Chandra Bhan Dubey and others
"(1999) 1 SCC 741, while dealing with the question of the"
maintainability of the writ petition against the U.P. State Co-
operative Development Bank Limited held the same as an
instrumentality of the State and an authority mentioned in
"Article 12 of the Constitution. On facts, the Court noticed"
that the control of the State Government on the Bank is all
pervasive and that the affairs of the Bank are controlled by
the State Government though it is functioning as a co-
"operative society, it is an extended arm of the State and"
thus an instrumentality of the State or authority as
mentioned under Article 12 of the Constitution. In All India
Sainik Schools employees’ Association v. Defence
"Minister-cum-Chairman Board of Governors, Sainik"
"Schools Society, New Delhi and others (1989)"
"Supplement 1 SCC 205, this Court held that the Sainik"
School society is “State” within the meaning of Article 12 of
the Constitution after having found that the entire funding is
by the State Government and by the Central Government
Page 13
14
and the overall control vests in the governmental authority
and the main object of the society is to run schools and
prepare students for the purpose feeding the National
Defence Academy.
14. This Court in Executive Committee of Vaish Degree
"College, Shamli and Others v. Lakshmi Narain and"
"Others (1976) 2 SCC 58, while dealing with the status of"
the Executive Committee of a Degree College registered
"under the Co-operative Societies Act, held as follows:"
“10………It seems to us that before an institution
can be a statutory body it must be created by or
under the statute and owe its existence to a
statute. This must be the primary thing which has
got to be established. Here a distinction must be
made between an institution which is not created
by or under a statute but is governed by certain
statutory provisions for the proper maintenance
and administration of the institution. There have
been a number of institutions which though not
created by or under any statute have adopted
"certain statutory provisions, but that by itself is"
"not, in our opinion, sufficient to clothe the"
institution with a statutory character……….”
"15. We can, therefore, draw a clear distinction between a"
"body which is created by a Statute and a body which, after"
Page 14
15
"having come into existence, is governed in accordance with"
"the provisions of a Statute. Societies, with which we are"
"concerned, fall under the later category that is governed by"
"the Societies Act and are not statutory bodies, but only body"
corporate within the meaning of Section 9 of the Kerala Co-
operative Societies Act having perpetual succession and
"common seal and hence have the power to hold property,"
"enter into contract, institute and defend suites and other"
legal proceedings and to do all things necessary for the
"purpose, for which it was constituted. Section 27 of the"
Societies Act categorically states that the final authority of a
society vests in the general body of its members and every
society is managed by the managing committee constituted
in terms of the bye-laws as provided under Section 28 of the
Societies Act. Final authority so far as such types of
"Societies are concerned, as Statute says, is the general body"
and not the Registrar of Cooperative Societies or State
Government.
Page 15
16
16. This Court in Federal Bank Ltd. v. Sagar Thomas
"and Others (2003) 10 SCC 733, held as follows:"
“32.Merely because Reserve Bank of India
lays the banking policy in the interest of the
banking system or in the interest of monetary
stability or sound economic growth having due
regard to the interests of the depositors etc. as
provided under Section 5(c)(a) of the Banking
Regulation Act does not mean that the private
companies carrying on the business or commercial
"activity of banking, discharge any public function"
or public duty. These are all regulatory measures
applicable to those carrying on commercial
activity in banking and these companies are to act
according to these provisions failing which certain
consequences follow as indicated in the Act itself.
As to the provision regarding acquisition of a
"banking company by the Government, it may be"
pointed out that any private property can be
acquired by the Government in public interest. It is
now a judicially accepted norm that private
interest has to give way to the public interest. If a
private property is acquired in public interest it
does not mean that the party whose property is
acquired is performing or discharging any function
or duty of public character though it would be so
for the acquiring authority”.
"17. Societies are, of course, subject to the control of the"
"statutory authorities like Registrar, Joint Registrar, the"
"Government, etc. but cannot be said that the State exercises"
any direct or indirect control over the affairs of the society
Page 16
17
which is deep and all pervasive. Supervisory or general
"regulation under the statute over the co-operative societies,"
which are body corporate does not render activities of the
body so regulated as subject to such control of the State so
as to bring it within the meaning of the “State” or
instrumentality of the State. Above principle has been
"approved by this Court in S.S. Rana v. Registrar, Co-"
operative Societies and another (2006) 11 SCC 634. In
that case this Court was dealing with the maintainability of
the writ petition against the Kangra Central Co-operative
"Society Bank Limited, a society registered under the"
provisions of the Himachal Pradesh Co-operative Societies
"Act, 1968. After examining various provisions of the H.P. Co-"
operative Societies Act this Court held as follows:
“9. It is not in dispute that the Society has not
been constituted under an Act. Its functions like
any other cooperative society are mainly
"regulated in terms of the provisions of the Act,"
except as provided in the bye-laws of the Society.
The State has no say in the functions of the
"Society. Membership, acquisition of shares and all"
other matters are governed by the bye-laws
framed under the Act. The terms and conditions of
"an officer of the cooperative society, indisputably,"
"are governed by the Rules. Rule 56, to which"
Page 17
18
"reference has been made by Mr Vijay Kumar, does"
not contain any provision in terms whereof any
legal right as such is conferred upon an officer of
the Society.
10. It has not been shown before us that the State
exercises any direct or indirect control over the
affairs of the Society for deep and pervasive
control. The State furthermore is not the majority
shareholder. The State has the power only to
"nominate one Director. It cannot, thus, be said"
that the State exercises any functional control
over the affairs of the Society in the sense that the
majority Directors are nominated by the State. For
arriving at the conclusion that the State has a
"deep and pervasive control over the Society,"
several other relevant questions are required to be
"considered, namely, (1) How was the Society"
created? (2) Whether it enjoys any monopoly
character? (3) Do the functions of the Society
partake to statutory functions or public functions?
and (4) Can it be characterised as public
authority?
"11. Respondent 2, the Society does not answer"
any of the aforementioned tests. In the case of a
"non-statutory society, the control thereover would"
mean that the same satisfies the tests laid down
by this Court in Ajay Hasia v. Khalid Mujib
Sehravardi. [See Zoroastrian Coop. Housing
"Society Ltd. v. Distt. Registrar, Coop. Societies"
(Urban).]
12. It is well settled that general regulations under
"an Act, like the Companies Act or the Cooperative"
"Societies Act, would not render the activities of a"
company or a society as subject to control of the
State. Such control in terms of the provisions of
the Act are meant to ensure proper functioning of
Page 18
19
the society and the State or statutory authorities
would have nothing to do with its day-to-day
functions.”
"18. We have, on facts, found that the Co-operative"
"Societies, with which we are concerned in these appeals, will"
not fall within the expression “State” or “instrumentalities of
the State” within the meaning of Article 12 of the
Constitution and hence not subject to all constitutional
limitations as enshrined in Part III of the Constitution. We
"may, however, come across situations where a body or"
organization though not a State or instrumentality of the
"State, may still satisfy the definition of public authority"
"within the meaning of Section 2(h) of the Act, an aspect"
which we may discuss in the later part of this Judgment.
Constitutional provisions and Co-operative autonomy:
19. Rights of the citizens to form co-operative societies
"voluntarily, is now raised to the level of a fundamental right"
and State shall endeavour to promote their autonomous
"functioning. The Parliament, with a view to enhance public"
faith in the co-operative institutions and to insulate them to
Page 19
20
avoidable political or bureaucratic interference brought in
"Constitutional (97th Amendment) Act, 2011, which received"
"the assent of the President on 12.01.2012, notified in the"
Gazette of India on 13.01.2012 and came into force on
15.02.2012.
20. Constitutional amendment has been effected to
encourage economic activities of co-operatives which in turn
help progress of rural India. Societies are expected not only
to ensure autonomous and democratic functioning of co-
"operatives, but also accountability of the management to the"
members and other share stake-holders. Article 19 protects
certain rights regarding freedom of speech. By virtue of
above amendment under Article 19(1)(c) the words “co-
operative societies” are added. Article 19(1)(c) reads as
under:
“19(1)(c) – All citizens shall have the right to form
associations or unions or co-operative societies”.
"Article 19(1)(c), therefore, guarantees the freedom to form"
"an association, unions and co-operative societies. Right to"
Page 20
21
"form a co-operative society is, therefore, raised to the level"
"of a fundamental right, guaranteed under the Constitution of"
India. Constitutional 97th Amendment Act also inserted a
new Article 43B with reads as follows :-
“the State shall endeavour to promote voluntary
"formation, autonomous functioning, democratic"
control and professional management of co-
operative societies”.
"21. By virtue of the above-mentioned amendment, Part IX-"
B was also inserted containing Articles 243ZH to 243ZT.
"Cooperative Societies are, however, not treated as units of"
"self-government, like Panchayats and Municipalities."
22. Article 243(ZL) dealing with the supersession and
suspension of board and interim management states that
notwithstanding anything contained in any law for the time
"being in force, no board shall be superseded or kept under"
suspension for a period exceeding six months. It provided
further that the Board of any such co-operative society shall
not be superseded or kept under suspension where there is
no government shareholding or loan or financial assistance
Page 21
22
or any guarantee by the Government. Such a constitutional
restriction has been placed after recognizing the fact that
there are co-operative societies with no government share
holding or loan or financial assistance or any guarantee by
the government.
23. Co-operative society is a state subject under Entry 32
List I Seventh Schedule to the Constitution of India. Most of
the States in India enacted their own Co-operative Societies
Act with a view to provide for their orderly development of
the cooperative sector in the state to achieve the objects of
"equity, social justice and economic development, as"
"envisaged in the Directive Principles of State Policy,"
enunciated in the Constitution of India. For co-operative
"societies working in more than one State, The Multi State Co-"
"operative Societies Act, 1984 was enacted by the Parliament"
under Entry 44 List I of the Seventh Schedule of the
Constitution. Co-operative society is essentially an
association or an association of persons who have come
Page 22
23
together for a common purpose of economic development or
for mutual help.
Right to Information Act
24. The RTI Act is an Act enacted to provide for citizens to
"secure, access to information under the control of public"
authorities and to promote transparency and accountability
in the working of every public authority. The preamble of
the Act reads as follows:
“An Act to provide for setting out the
practical regime of right to information for citizens
to secure access to information under the control
"of public authorities, in order to promote"
transparency and accountability in the working of
"every public authority, the constitution of a"
Central Information Commission and State
Information Commissions and for matters
connected therewith or incidental thereto.
WHEREAS the Constitution of India has
established democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of information
which are vital to its functioning and also to
contain corruption and to hold Governments and
their instrumentalities accountable to the
governed;
Page 23
24
AND WHEREAS revelation of information in
actual practice is likely to conflict with other public
interests including efficient operations of the
"Governments, optimum use of limited fiscal"
resources and the preservation of confidentiality of
sensitive information;
AND WHEREAS it is necessary to harmonise
these conflicting interests while preserving the
paramountcy of the democratic ideal;
"NOW, THEREFORE, it is expedient to provide"
for furnishing certain information to citizens who
desire to have it.”
25. Every public authority is also obliged to maintain all its
record duly catalogued and indexed in a manner and the
form which facilitates the right to information under this Act
and ensure that all records that are appropriate to be
"computerized are, within a reasonable time and subject to"
"availability of resources, computerized and connected"
through a network all over the country on different systems
so that access to such record is facilitated. Public authority
"has also to carry out certain other functions also, as provided"
under the Act.
26. The expression “public authority” is defined under
"Section 2(h) of the RTI Act, which reads as follows:"
Page 24
25
"“2. Definitions._ In this Act, unless the context"
otherwise requires :
"(h) ""public authority"" means any authority or"
body or institution of self-government
established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State
Legislature;
(d) by notification issued or order made by
"the appropriate Government, and"
includes any—
"(i) body owned, controlled or"
substantially financed;
(ii) non-Government organisation
"substantially financed, directly or"
indirectly by funds provided by the
appropriate Government”
"27. Legislature, in its wisdom, while defining the expression"
"“public authority” under Section 2(h), intended to embrace"
"only those categories, which are specifically included, unless"
the context of the Act otherwise requires. Section 2(h) has
used the expressions ‘means’ and includes’. When a word is
"defined to ‘mean’ something, the definition is prima facie"
restrictive and where the word is defined to ‘include’ some
Page 25
26
"other thing, the definition is prima facie extensive. But when"
"both the expressions “means” and “includes” are used, the"
categories mentioned there would exhaust themselves.
Meanings of the expressions ‘means’ and ‘includes’ have
been explained by this Court in Delhi Development
Authority v. Bhola Nath Sharma (Dead) by LRs and
"others (2011) 2 SCC 54, (in paras 25 to 28). When such"
"expressions are used, they may afford an exhaustive"
"explanation of the meaning which for the purpose of the Act,"
must invariably be attached to those words and expressions.
28. Section 2(h) exhausts the categories mentioned
therein. The former part of 2(h) deals with:
(1) an authority or body or institution of self-government
"established by or under the Constitution,"
(2) an authority or body or institution of self-
government established or constituted by any other
"law made by the Parliament,"
(3) an authority or body or institution of self-government
established or constituted by any other law made by
"the State legislature, and"
Page 26
27
(4) an authority or body or institution of self-government
established or constituted by notification issued or
order made by the appropriate government.
"29. Societies, with which we are concerned, admittedly, do"
"not fall in the above mentioned categories, because none of"
"them is either a body or institution of self-government,"
"established or constituted under the Constitution, by law"
"made by the Parliament, by law made by the State"
Legislature or by way of a notification issued or made by the
appropriate government. Let us now examine whether they
"fall in the later part of Section 2(h) of the Act, which"
embraces within its fold:
"(5) a body owned, controlled or substantially financed,"
directly or indirectly by funds provided by the
"appropriate government,"
(6) non-governmental organizations substantially financed
directly or indirectly by funds provided by the
appropriate government.
30 The expression ‘Appropriate Government’ has also
"been defined under Section 2(a) of the RTI Act, which reads"
as follows :
Page 27
28
“2(a). “appropriate Government” means in
relation to a public authority which is
"established, constituted, owned, controlled"
or substantially financed by funds provided
directly or indirectly-
(i) by the Central Government or the
"Union territory administration, the"
Central Government;
"(ii) by the State Government, the State"
Government.”
"31. The RTI Act, therefore, deals with bodies which are"
"owned, controlled or substantially financed, directly or"
"indirectly, by funds provided by the appropriate government"
and also non-government organizations substantially
"financed, directly or indirectly, by funds provided by the"
"appropriate government, in the event of which they may fall"
within the definition of Section 2(h)(d)(i) or (ii) respectively.
"As already pointed out, a body, institution or an organization,"
which is neither a State within the meaning of Article 12 of
"the Constitution or instrumentalities, may still answer the"
definition of public authority under Section 2(h)d (i) or (ii).
(a) Body owned by the appropriate government – A
body owned by the appropriate government clearly falls
"under Section 2(h)(d)(i) of the Act. A body owned, means to"
Page 28
29
have a good legal title to it having the ultimate control over
"the affairs of that body, ownership takes in its fold control,"
finance etc. Further discussion of this concept is
"unnecessary because, admittedly, the societies in question"
are not owned by the appropriate government.
(b) Body Controlled by the Appropriate Government
A body which is controlled by the appropriate
government can fall under the definition of public authority
under Section 2h(d)(i). Let us examine the meaning of the
expression “controlled” in the context of RTI Act and not in
the context of the expression “controlled” judicially
interpreted while examining the scope of the expression
“State” under Article 12 of the Constitution or in the context
of maintainability of a writ against a body or authority under
Article 226 of the Constitution of India. The word
"“control” or “controlled” has not been defined in the RTI Act,"
"and hence, we have to understand the scope of the"
expression ‘controlled’ in the context of the words which
exist prior and subsequent i.e. “body owned” and
Page 29
30
“substantially financed” respectively. The meaning of the
word “control” has come up for consideration in several
cases before this Court in different contexts. In State of
"West Bengal and another v. Nripendra Nath Bagchi,"
AIR 1966 SC 447 while interpreting the scope of Article 235
"of the Constitution of India, which confers control by the"
"High Court over District Courts, this Court held that the word"
“control” includes the power to take disciplinary action and
all other incidental or consequential steps to effectuate this
end and made the following observations :
"“The word ‘control’, as we have seen, was used for"
the first time in the Constitution and it is
accompanied by the word ‘vest’ which is a strong
word. It shows that the High Court is made the
sole custodian of the control over the judiciary.
"Control, therefore, is not merely the power to"
arrange the day to day working of the court but
contemplates disciplinary jurisdiction over the
"presiding Judge.... In our judgment, the control"
which is vested in the High Court is a complete
control subject only to the power of the Governor
in the matter of appointment (including dismissal
and removal) and posting and promotion of
District Judges. Within the exercise of the control
"vested in the High Court, the High Court can hold"
"enquiries, impose punishments other than"
"dismissal or removal, ...”"
Page 30
31
32. The above position has been reiterated by this Court in
Chief Justice of Andhra Pradesh and others v. L.V.A.
Dixitulu and others (1979) 2 SCC 34. In Corporation of
"the City of Nagpur Civil Lines, Nagpur and another v."
"Ramchandra and others (1981) 2 SCC 714, while"
interpreting the provisions of Section 59(3) of the City of
"Nagpur Corporation Act, 1948, this Court held as follows :"
“4. It is thus now settled by this Court that the
term “control” is of a very wide connotation and
amplitude and includes a large variety of powers
which are incidental or consequential to achieve
the powers-vested in the authority
concerned…….”
33. The word “control” is also sometimes used synonyms
"with superintendence, management or authority to direct,"
restrict or regulate by a superior authority in exercise of its
supervisory power. This Court in The Shamrao Vithal Co-
operative Bank Ltd. v. Kasargode Pandhuranga
"Mallya (1972) 4 SCC 600, held that the word “control” does"
not comprehend within itself the adjudication of a claim
made by a co-operative society against its members. The
Page 31
32
meaning of the word “control” has also been considered by
this Court in State of Mysore v. Allum Karibasappa &
"Ors. (1974) 2 SCC 498, while interpreting Section 54 of the"
"Mysore Cooperative Societies Act, 1959 and Court held that"
"the word “control” suggests check, restraint or influence and"
intended to regulate and hold in check and restraint from
action. The expression “control” again came up for
consideration before this Court in Madan Mohan
"Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in"
the context of Article 235 of the Constitution and the Court
held that the expression “control” includes disciplinary
"control, transfer, promotion, confirmation, including transfer"
of a District Judge or recall of a District Judge posted on ex-
cadre post or on deputation or on administrative post etc. so
also premature and compulsory retirement. Reference may
also be made to few other judgments of this Court reported
in Gauhati High Court and another v. Kuladhar Phukan
"and another (2002) 4 SCC 524, State of Haryana v."
"Inder Prakash Anand HCS and others (1976) 2 SCC 977,"
High Court of Judicature for Rajasthan v. Ramesh
Page 32
33
"Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya"
"Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628,"
TMA Pai Foundation and others v. State of Karnataka
"(2002) 8 SCC 481, Ram Singh and others v. Union"
"Territory, Chandigarh and others (2004) 1 SCC 126, etc."
34. We are of the opinion that when we test the meaning of
expression “controlled” which figures in between the words
"“body owned” and “substantially financed”, the control by"
the appropriate government must be a control of a
substantial nature. The mere ‘supervision’ or ‘regulation’ as
such by a statute or otherwise of a body would not make
that body a “public authority” within the meaning of Section
2(h)(d)(i) of the RTI Act. In other words just like a body
owned or body substantially financed by the appropriate
"government, the control of the body by the appropriate"
government would also be substantial and not merely
supervisory or regulatory. Powers exercised by the Registrar
of Cooperative Societies and others under the Cooperative
"Societies Act are only regulatory or supervisory in nature,"
Page 33
34
which will not amount to dominating or interfering with the
management or affairs of the society so as to be controlled.
Management and control are statutorily conferred on the
Management Committee or the Board of Directors of the
Society by the respective Cooperative Societies Act and not
on the authorities under the Co-operative Societies Act.
"35. We are, therefore, of the view that the word"
“controlled” used in Section 2(h)(d)(i) of the Act has to be
understood in the context in which it has been used vis-a-vis
a body owned or substantially financed by the appropriate
"government, that is the control of the body is of such a"
degree which amounts to substantial control over the
management and affairs of the body.
SUBSTANTIALLY FINANCED
36. The words “substantially financed” have been used in
"Sections 2(h)(d)(i) & (ii), while defining the expression public"
Page 34
35
"authority as well as in Section 2(a) of the Act, while defining"
the expression “appropriate Government”. A body can be
"substantially financed, directly or indirectly by funds"
provided by the appropriate Government. The expression
"“substantially financed”, as such, has not been defined"
under the Act. “Substantial” means “in a substantial
manner so as to be substantial”. In Palser v. Grimling
"(1948) 1 All ER 1, 11 (HL), while interpreting the provisions"
of Section 10(1) of the Rent and Mortgage Interest
"Restrictions Act, 1923, the House of Lords held that"
“substantial” is not the same as “not unsubstantial” i.e. just
enough to avoid the de minimis principle. The word
"“substantial” literally means solid, massive etc. Legislature"
has used the expression “substantially financed” in Sections
2(h)(d)(i) and (ii) indicating that the degree of financing must
"be actual, existing, positive and real to a substantial extent,"
"not moderate, ordinary, tolerable etc."
37. We often use the expressions “questions of law” and
“substantial questions of law” and explain that any question
Page 35
36
of law affecting the right of parties would not by itself be a
substantial question of law. In Black's Law Dictionary
"(6th Edn.), the word 'substantial' is defined as 'of real worth"
and importance; of considerable value; valuable. Belonging
to substance; actually existing; real: not seeming or
imaginary; not illusive; solid; true; veritable. Something
worthwhile as distinguished from something without value or
merely nominal. Synonymous with material.' The word
'substantially' has been defined to mean 'essentially; without
material qualification; in the main; in substance; materially.'
"In the Shorter Oxford English Dictionary (5th Edn.), the word"
'substantial' means 'of ample or considerable amount of size;
"sizeable, fairly large; having solid worth or value, of real"
"significance; sold; weighty; important, worthwhile; of an act,"
"measure etc. having force or effect, effective, thorough.' The"
word 'substantially' has been defined to mean 'in substance;
"as a substantial thing or being; essentially, intrinsically.'"
Therefore the word 'substantial' is not synonymous with
'dominant' or 'majority'. It is closer to 'material' or
'important' or 'of considerable value.' 'Substantially' is closer
Page 36
37
to 'essentially'. Both words can signify varying degrees
depending on the context.
"38. Merely providing subsidiaries, grants, exemptions,"
"privileges etc., as such, cannot be said to be providing"
"funding to a substantial extent, unless the record shows that"
the funding was so substantial to the body which practically
"runs by such funding and but for such funding, it would"
struggle to exist. The State may also float many schemes
generally for the betterment and welfare of the cooperative
"sector like deposit guarantee scheme, scheme of assistance"
"from NABARD etc., but those facilities or assistance cannot"
be termed as “substantially financed” by the State
Government to bring the body within the fold of “public
"authority” under Section 2(h)(d)(i) of the Act. But, there are"
"instances, where private educational institutions getting"
ninety five per cent grant-in-aid from the appropriate
"government, may answer the definition of public authority"
under Section 2(h)(d)(i).
Page 37
38
NON-GOVERNMENT ORGANISATIONS:
"39. The term “Non-Government Organizations” (NGO), as"
"such, is not defined under the Act. But, over a period of"
"time, the expression has got its own meaning and, it has to"
"be seen in that context, when used in the Act. Government"
"used to finance substantially, several non-government"
"organizations, which carry on various social and welfare"
"activities, since those organizations sometimes carry on"
"functions which are otherwise governmental. Now, the"
"question, whether an NGO has been substantially financed or"
"not by the appropriate Government, may be a question of"
"fact, to be examined by the authorities concerned under the"
RTI Act. Such organization can be substantially financed
either directly or indirectly by funds provided by the
appropriate Government. Government may not have any
"statutory control over the NGOs, as such, still it can be"
established that a particular NGO has been substantially
financed directly or indirectly by the funds provided by the
"appropriate Government, in such an event, that organization"
Page 38
39
will fall within the scope of Section 2(h)(d)(ii) of the RTI Act.
"Consequently, even private organizations which are, though"
not owned or controlled but substantially financed by the
appropriate Government will also fall within the definition of
“public authority” under Section 2(h)(d)(ii) of the Act.
BURDEN TO SHOW:
"40. The burden to show that a body is owned, controlled or"
substantially financed or that a non-government
organization is substantially financed directly or indirectly by
the funds provided by the appropriate Government is on the
applicant who seeks information or the appropriate
Government and can be examined by the State Information
Commission or the Central Information Commission as the
"case may be, when the question comes up for consideration."
"A body or NGO is also free to establish that it is not owned,"
controlled or substantially financed directly or indirectly by
the appropriate Government.
Page 39
40
41. Powers have been conferred on the Central Information
Commissioner or the State Information Commissioner under
Section 18 of the Act to inquire into any complaint received
from any person and the reason for the refusal to access to
"any information requested from a body owned, controlled or"
"substantially financed, or a non-government organization"
substantially financed directly or indirectly by the funds
provided by the appropriate Government. Section 19 of the
Act provides for an appeal against the decision of the Central
Information Officer or the State Information Officer to such
officer who is senior in rank to the Central Information
"Officer or the State Information Officer, as the case may be,"
"in each public authority. Therefore, there is inbuilt"
mechanism in the Act itself to examine whether a body is
"owned, controlled or substantially financed or an NGO is"
"substantially financed, directly or indirectly, by funds"
provided by the appropriate authority.
42. Legislative intention is clear and is discernible from
"Section 2(h) that intends to include various categories,"
Page 40
41
discussed earlier. It is trite law that the primarily language
employed is the determinative factor of the legislative
intention and the intention of the legislature must be found
in the words used by the legislature itself. In Magor and
St. Mellons Rural District Council v. New Port
Corporation (1951) 2 All ER 839(HL) stated that the courts
are warned that they are not entitled to usurp the legislative
function under the guise of interpretation. This Court in
D.A. Venkatachalam and others v. Dy. Transport
"Commissioner and others (1977) 2 SCC 273, Union of"
India v. Elphinstone Spinning and Weaving Co. Ltd.
"and others (2001) 4 SCC 139, District Mining Officer"
and others v. Tata Iron & Steel Co. and another (2001)
"7 SCC 358, Padma Sundara Rao (Dead) and others v."
"State of Tamil Nadu and others (2002) 3 SCC 533,"
Maulvi Hussain Haji Abraham Umarji v. State of
Gujarat and another (2004) 6 SCC 672 held that the court
must avoid the danger of an apriori determination of the
meaning of a provision based on their own preconceived
notions of ideological structure or scheme into which the
Page 41
42
provisions to be interpreted is somehow fitted. It is trite law
"that words of a statute are clear, plain and unambiguous i.e."
"they are reasonably susceptible to only one meaning, the"
courts are bound to give effect to that meaning irrespective
"of the consequences, meaning thereby when the language is"
"clear and unambiguous and admits of only one meaning, no"
"question of construction of a statute arises, for the statute"
speaks for itself. This Court in Kanai Lal Sur v.
Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the
words used are capable of one construction only then it
would not be open to courts to adopt any other hypothetical
construction on the ground that such construction is more
consistent with the alleged object and policy of the Act.”
43. We are of the view that the High Court has given a
complete go-bye to the above-mentioned statutory
principles and gone at a tangent by mis-interpreting the
meaning and content of Section 2(h) of the RTI Act. Court
has given a liberal construction to expression “public
"authority” under Section 2(h) of the Act, bearing in mind the"
Page 42
43
“transformation of law” and its “ultimate object” i.e. to
"achieve “transparency and accountability”, which according"
to the court could alone advance the objective of the Act.
"Further, the High Court has also opined that RTI Act will"
certainly help as a protection against the mismanagement of
the society by the managing committee and the society’s
liabilities and that vigilant members of the public body by
"obtaining information through the RTI Act, will be able to"
"detect and prevent mismanagement in time. In our view,"
the categories mentioned in Section 2(h) of the Act exhaust
"themselves, hence, there is no question of adopting a liberal"
construction to the expression “public authority” to bring in
"other categories into its fold, which do not satisfy the tests"
"we have laid down. Court cannot, when language is clear"
"and unambiguous, adopt such a construction which,"
"according to the Court, would only advance the objective of"
the Act. We are also aware of the opening part of the
definition clause which states “unless the context otherwise
requires”. No materials have been made available to show
"that the cooperative societies, with which we are concerned,"
Page 43
44
"in the context of the Act, would fall within the definition of"
Section 2(h) of the Act.
Right to Information and the Right to Privacy
44. People’s right to have access to an official information
finds place in Resolution 59(1) of the UN General Assembly
held in 1946. It states that freedom of information is a
fundamental human right and the touchstone to all the
freedoms to which the United Nations is consecrated. India
is a party to the International Covenant on Civil and Political
Rights and hence India is under an obligation to effectively
guarantee the right to information. Article 19 of the
Universal Declaration of Human Rights also recognizes right
to information. Right to information also emanates from the
fundamental right guaranteed to citizens under Article 19(1)
(a) of the Constitution of India. Constitution of India does not
explicitly grant a right to information. In Bennet Coleman
& Co. and others Vs. Union of India and others (1972)
"2 SCC 788, this Court observed that it is indisputable that by"
"“Freedom of Press” meant the right of all citizens to speak,"
Page 44
45
publish and express their views and freedom of speech and
expression includes within its compass the right of all
citizens to read and be informed. In Union of India Vs.
Association of Democratic Reforms and another (2002)
"5 SCC 294, this Court held that the right to know about the"
antecedents including criminal past of the candidates
contesting the election for Parliament and State Assembly is
a very important and basic facets for survival of democracy
"and for this purpose, information about the candidates to be"
selected must be disclosed. In State of U.P. Vs. Raj
"Narain and others (1975) 4 SCC 428, this Court recognized"
that the right to know is the right that flows from the right of
freedom of speech and expression guaranteed under Article
19(1)(a) of the Constitution. In People’s Union for Civil
Liberties (PUCL) and others Vs. Union of India and
"another (2003) 4 SCC 399, this Court observed that the"
right to information is a facet of freedom of speech and
expression contained in Article 19(1)(a) of the Constitution of
India. Right to information thus indisputably is a
Page 45
46
"fundamental right, so held in several judgments of this"
"Court, which calls for no further elucidation."
"45. The Right to Information Act, 2005 is an Act which"
provides for setting up the practical regime of right to
information for citizens to secure access to information
under the control of public authorities in order to promote
transparency and accountability in the working of every
public authority. Preamble of the Act also states that the
democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to
contain corruption and to hold Governments and their
instrumentalities accountable to the governed. Citizens
"have, however, the right to secure access to information of"
only those matters which are “under the control of public
"authorities”, the purpose is to hold “Government and its"
instrumentalities” accountable to the governed.
"Consequently, though right to get information is a"
fundamental right guaranteed under Article 19(1)(a) of the
"Constitution, limits are being prescribed under the Act itself,"
Page 46
47
which are reasonable restrictions within the meaning of
Article 19(2) of the Constitution of India.
46. Right to privacy is also not expressly guaranteed under
"the Constitution of India. However, the Privacy Bill, 2011 to"
provide for the right to privacy to citizens of India and to
"regulate the collection, maintenance and dissemination of"
their personal information and for penalization for violation
"of such rights and matters connected therewith, is pending."
In several judgments including Kharak Singh Vs. State of
"U.P. and others AIR 1963 SC 1295, R. Rajagopal alias"
R.R. Gopal and another Vs. State of Tamil Nadu and
"others (1994) 6 SCC 632, People’s Union for Civil"
Liberties (PUCL) Vs. Union of India and another (1997)
1 SCC 301 and State of Maharashtra Vs. Bharat Shanti
"Lal Shah and others (2008) 13 SCC 5, this Court has"
recognized the right to privacy as a fundamental right
emanating from Article 21 of the Constitution of India. Right
to privacy is also recognized as a basic human right under
Page 47
48
"Article 12 of the Universal Declaration of Human Rights Act,"
"1948, which states as follows:"
“No one shall be subjected to arbitrary
"interference with his privacy, family, home or"
"correspondence, not to attack upon his honour"
and reputation. Everyone has the right to the
protection of law against such interference or
attacks.”
Article 17 of the International Covenant on Civil and Political
"Rights Act, 1966, to which India is a party also protects that"
right and states as follows:
“No one shall be subjected to arbitrary or unlawful
"interference with his privacy, family, home and"
correspondence nor to unlawful attacks on his
honour and reputation….”
This Court in R. Rajagopal (supra) held as follows :-
“The right to privacy is implicit in the right to life
and liberty guaranteed to the citizens of this
country by Article 21. It is a “right to be let
alone”. A citizen has a right to safeguard the
"privacy of his own, his family, marriage,"
"procreation, motherhood, child bearing and"
education among other matters.”
Page 48
49
Restrictions and Limitations:
"47. Right to information and Right to privacy are, therefore,"
"not absolute rights, both the rights, one of which falls under"
Article 19(1)(a) and the other under Article 21 of the
"Constitution of India, can obviously be regulated, restricted"
and curtailed in the larger public interest. Absolute or
uncontrolled individual rights do not and cannot exist in any
modern State. Citizens’ right to get information is statutorily
"recognized by the RTI Act, but at the same time limitations"
"are also provided in the Act itself, which is discernible from"
"the Preamble and other provisions of the Act. First of all, the"
scope and ambit of the expression “public authority” has
been restricted by a statutory definition under Section 2(h)
limiting it to the categories mentioned therein which exhaust
"itself, unless the context otherwise requires. Citizens, as"
"already indicated by us, have a right to get information, but"
can have access only to the information “held” and under
"the “control of public authorities”, with limitations. If the"
Page 49
50
"information is not statutorily accessible by a public authority,"
"as defined in Section 2(h) of the Act, evidently, those"
information will not be under the “control of the public
"authority”. Resultantly, it will not be possible for the citizens"
to secure access to those information which are not under
"the control of the public authority. Citizens, in that event,"
"can always claim a right to privacy, the right of a citizen to"
"access information should be respected, so also a citizen’s"
right to privacy.
48. Public authority also is not legally obliged to give or
"provide information even if it is held, or under its control, if"
that information falls under clause (j) of Sub-section (1) of
Section 8. Section 8(1)(j) is of considerable importance so
"far as this case is concerned, hence given below, for ready"
reference:-
“8. Exemption from disclosure of
information – (1) Notwithstanding anything
"contained in this Act, there shall be no obligation"
to give any citizen –
(a) to (i) xxx xxx xxx
Page 50
51
(j) information which relates to personal
information the disclosure of which has no
"relationship to any public activity or interest, or"
which would cause unwarranted invasion of the
privacy of the individual unless the Central Public
Information Officer or the State Public Information
"Officer or the appellate authority, as the case may"
"be, is satisfied that the larger public interest"
justifies the disclosure of such information:
Provided that the information which cannot be
denied to the Parliament or a State Legislature
shall not be denied to any person.”
"49. Section 8 begins with a non obstante clause, which"
"gives that Section an overriding effect, in case of conflict,"
"over the other provisions of the Act. Even if, there is any"
"indication to the contrary, still there is no obligation on the"
public authority to give information to any citizen of what
"has been mentioned in clauses (a) to (j). Public authority,"
"as already indicated, cannot access all the information from"
"a private individual, but only those information which he is"
"legally obliged to pass on to a public authority by law, and"
also only those information to which the public authority can
have access in accordance with law. Even those
"information, if personal in nature, can be made available"
only subject to the limitations provided in Section 8(j) of the
Page 51
52
"RTI Act. Right to be left alone, as propounded in Olmstead"
v. The United States reported in 1927 (277) US 438 is the
most comprehensive of the rights and most valued by
civilized man.
50. Recognizing the fact that the right to privacy is a
"sacrosanct facet of Article 21 of the Constitution, the"
legislation has put a lot of safeguards to protect the rights
"under Section 8(j), as already indicated. If the information"
sought for is personal and has no relationship with any
public activity or interest or it will not sub-serve larger public
"interest, the public authority or the officer concerned is not"
legally obliged to provide those information. Reference may
be made to a recent judgment of this Court in Girish
Ramchandra Deshpande v. Central Information
"Commissioner and others (2013) 1 SCC 212, wherein this"
Court held that since there is no bona fide public interest in
"seeking information, the disclosure of said information would"
cause unwarranted invasion of privacy of the individual
"under Section 8(1)(j) of the Act. Further, if the authority"
Page 52
53
finds that information sought for can be made available in
"the larger public interest, then the officer should record his"
"reasons in writing before providing the information, because"
"the person from whom information is sought for, has also a"
right to privacy guaranteed under Article 21 of the
Constitution.
"51. We have found, on facts, that the Societies, in these"
"appeals, are not public authorities and, hence, not legally"
obliged to furnish any information sought for by a citizen
"under the RTI Act. All the same, if there is any dispute on"
facts as to whether a particular Society is a public authority
"or not, the State Information Commission can examine the"
same and find out whether the Society in question satisfies
"the test laid in this judgment. Now, the next question is"
whether a citizen can have access to any information of
these Societies through the Registrar of Cooperative
"Societies, who is a public authority within the meaning of"
Section 2(h) of the Act.
Registrar of Cooperative Societies
Page 53
54
52. Registrar of Cooperative Societies functioning under the
Cooperative Societies Act is a public authority within the
"meaning of Section 2(h) of the Act. As a public authority,"
Registrar of Co-operative Societies has been conferred with
lot of statutory powers under the respective Act under which
he is functioning. He is also duty bound to comply with the
obligations under the RTI Act and furnish information to a
citizen under the RTI Act. Information which he is expected
to provide is the information enumerated in Section 2(f) of
the RTI Act subject to the limitations provided under Section
"8 of the Act. Registrar can also, to the extent law permits,"
"gather information from a Society, on which he has"
supervisory or administrative control under the Cooperative
"Societies Act. Consequently, apart from the information as is"
"available to him, under Section 2(f), he can also gather those"
"information from the Society, to the extent permitted by law."
Registrar is also not obliged to disclose those information if
those information fall under Section 8(1)(j) of the Act. No
"provision has been brought to our knowledge indicating that,"
Page 54
55
"under the Cooperative Societies Act, a Registrar can call for"
the details of the bank accounts maintained by the citizens
or members in a cooperative bank. Only those information
which a Registrar of Cooperative Societies can have access
under the Cooperative Societies Act from a Society could be
said to be the information which is “held” or “under the
"control of public authority”. Even those information,"
"Registrar, as already indicated, is not legally obliged to"
provide if those information falls under the exempted
category mentioned in Section 8(j) of the Act. Apart from
"the Registrar of Co-operative Societies, there may be other"
public authorities who can access information from a Co-
operative Bank of a private account maintained by a
"member of Society under law, in the event of which, in a"
"given situation, the society will have to part with that"
information. But the demand should have statutory backing.
"53. Consequently, an information which has been sought"
"for relates to personal information, the disclosure of which"
has no relationship to any public activity or interest or which
Page 55
56
would cause unwarranted invasion of the privacy of the
"individual, the Registrar of Cooperative Societies, even if he"
"has got that information, is not bound to furnish the same to"
"an applicant, unless he is satisfied that the larger public"
"interest justifies the disclosure of such information, that too,"
for reasons to be recorded in writing.
"54. We, therefore, hold that the Cooperative Societies"
registered under the Kerala Co-operative Societies Act will
not fall within the definition of “public authority” as defined
under Section 2(h) of the RTI Act and the State Government
letter dated 5.5.2006 and the circular dated 01.06.2006
"issued by the Registrar of Co-operative Societies, Kerala, to"
"the extent, made applicable to societies registered under the"
Kerala Co-operative Societies Act would stand quashed in
"the absence of materials to show that they are owned,"
controlled or substantially financed by the appropriate
"Government. Appeals are, therefore, allowed as above,"
"however, with no order as to costs."
Page 56
57
………..………………….J.
(K.S. Radhakrishnan)
……………………………J.
(A.K. Sikri)
"New Delhi,"
"October 07, 2013"
Page 57
\224Ú REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. 91 OF 2015
(Arising out of Transfer Petition (Civil) No. 707 of 2012)
Reserve Bank of India ........Petitioner(s)
versus
Jayantilal N. Mistry .....Respondent(s)
With
TRANSFERRED CASE (CIVIL) NO. 92 OF 2015
(Arising out of Transfer Petition (Civil) No. 708 of 2012)
I.C.I.C.I Bank Limited ........ Petitioner(s)
versus
S.S. Vohra and others .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 93 OF 2015
(Arising out of Transfer Petition (Civil) No. 711 of 2012)
National Bank for Agriculture
and Rural Development .........Petitioner(s)
versus
Kishan Lal Mittal .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 94 OF 2015
(Arising out of Transfer Petition (Civil) No. 712 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
P.P. Kapoor ..........Respondent(s)
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2015.12.16
13:23:34 IST
Reason:
1
TRANSFERRED CASE (CIVIL) NO. 95 OF 2015
(Arising out of Transfer Petition (Civil) No. 713 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Subhas Chandra Agrawal ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 96 OF 2015
(Arising out of Transfer Petition (Civil) No. 715 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Raja M. Shanmugam ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 97 OF 2015
(Arising out of Transfer Petition (Civil) No. 716 of 2012)
National Bank for Agriculture
and Rural Development ..........Petitioner(s)
versus
Sanjay Sitaram Kurhade ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 98 OF 2015
(Arising out of Transfer Petition (Civil) No. 717 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
K.P. Muralidharan Nair ...........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 99 OF 2015
(Arising out of Transfer Petition (Civil) No. 718 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Ashwini Dixit ...........Respondent(s)
2
TRANSFERRED CASE (CIVIL) NO. 100 OF 2015
(Arising out of Transfer Petition (Civil) No. 709 of 2012)
Reserve Bank of India .........Petitioner(s)
versus
A.Venugopal and another .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 101 OF 2015
(Arising out of Transfer Petition (Civil) No. 714 of 2012)
Reserve Bank of India .........Petitioner(s)
versus
Dr. Mohan K. Patil and others .........Respondent(s)
JUDGMENT
"M.Y. EQBAL, J."
The main issue that arises for our consideration in these
transferred cases is as to whether all the information sought
"for under the Right to Information Act, 2005 can be denied by"
the Reserve Bank of India and other Banks to the public at
"large on the ground of economic interest, commercial"
"confidence, fiduciary relationship with other Bank on the one"
hand and the public interest on the other. If the answer to
"above question is in negative, then upto what extent the"
information can be provided under the 2005 Act.
3
2. It has been contended by the RBI that it carries out
inspections of banks and financial institutions on regular
basis and the inspection reports prepared by it contain a wide
range of information that is collected in a fiduciary capacity.
The facts in brief of the Transfer Case No.91 of 2015 are that
"during May-June, 2010 the statutory inspection of Makarpura"
Industrial Estate Cooperative Bank Ltd. was conducted by RBI
"under the Banking Regulation Act, 1949. Thereafter, in"
"October 2010, the Respondent sought following information"
"from the CPIO of RBI under the Act of 2005, reply to which is"
tabulated hereunder:
Sr. No. Information sought Reply
1. Procedure Rules and RBI is conducting inspections
Regulations of Inspection under Section 35 of the B.R. Act
being carried out on 1949 (AACS) at prescribed
Co-operative Banks intervals.
2. Last RBI investigation and The Information sought is
audit report carried out by maintained by the bank in a
Shri Santosh Kumar during fiduciary capacity and was
"23rd April, 2010 to 6th May, obtained by Reserve Bank during"
2010 sent to Registrar of the the course of inspection of the
Cooperative of the Gujarat bank and hence cannot be given to
"State, Gandhinagar on the outsiders. Moreover, disclosure"
Makarpura Industrial Estate of such information may harm the
Co-op Bank Ltd Reg. No.2808 interest of the bank & banking
system. Such information is also
exempt from disclosure under
"Section 8(1) (a) & (e) of the RTI Act,"
4
2005.
3. Last 20 years inspection Same as at (2) above
(carried out with name of
inspector) report on above
bank and action taken report.
4. (i) Reports on all co-operative (i) Same as at (2) above
banks gone on liquidation
(ii) This information is not
(ii) action taken against all available with the
Directors and Managers for Department
recovery of public funds and
powers utilized by RBI and
analysis and procedure
adopted.
5. Name of remaining No specific information has
co-operative banks under been sought
your observations against
irregularities and action
taken reports
6. Period required to take No specific information has
action and implementations been sought
"3. On 30.3.2011, the First Appellate Authority disposed of"
the appeal of the respondent agreeing with the reply given by
"CPIO in query No.2, 3 & first part of 4, relying on the decision"
of the Full Bench of CIC passed in the case of Ravin
Ranchochodlal Patel and another vs. Reserve Bank of India.
"Thereafter, in the second appeal preferred by the aggrieved"
"respondent, the Central Information Commission by the"
"impugned order dated 01.11.2011, directed RBI to provide"
5
information as per records to the Respondent in relation to
queries Nos.2 to 6 before 30.11.2011. Aggrieved by the
"decision of the Central Information Commission (CIC),"
petitioner RBI moved the Delhi High Court by way of a Writ
Petition inter alia praying for quashing of the aforesaid order of
"the CIC. The High Court, while issuing notice, stayed the"
operation of the aforesaid order.
"4. Similarly, in Transfer Case No. 92 of 2015, the"
Respondent sought following information from the CPIO of RBI
"under the Act of 2005, reply to which is tabulated hereunder:"
Sr. Information sought Reply
No.
1. The Hon’ble FM made a In the absence of the specific
"written statement on the Floor details, we are not able to provide"
of the House which inter alia any information.
must have been made after
verifying the records from RBI
and the Bank must have the
copy of the facts as reported
by FM. Please supply copy of
the note sent to FM
2. The Hon’ble FM made a We do not have this information.
statement that some of the
"banks like SBI, ICICI Bank"
"Ltd, Bank of Baroda, Dena"
"Bank, HSBC Bank etc. were"
issued letter of displeasure for
violating FEMA guidelines for
opening of accounts where as
some other banks were even
6
fined Rupees one crore for
such violations. Please give
me the names of the banks
with details of violations
committed by them.
3. ‘Advisory Note’ issued to ICICI An Advisory Letter had been issued
"Bank for account opened by to the bank in December, 2007 for"
some fraudsters at its Patna the bank’s Patna branch having
Branch Information sought failed to (a) comply with the RBI
"about ""exact nature of guidelines on customer"
"irregularities committed by the identification, opening/operating"
"bank under ""FEMA"". Also give customer accounts, (b) the bank"
list of other illegalities not having followed the normal
committed by IBL and other banker’s prudence while opening
details of offences committed an account in question.
by IBL through various
branches in India and abroad As regards the list of supervisory
"along with action taken by the action taken by us, it may be"
Regulator including the names stated that the query is too general
"and designations of his and not specific. Further, we may"
"officials branch name, type of state that Supervisory actions"
offence committed etc. The taken were based on the scrutiny
exact nature of offences conducted under Section 35 of the
committed by Patna Branch of Banking Regulation (BR) Act. The
the bank and other branches information in the scrutiny report
of the bank and names of his is held in fiduciary capacity and
"officials involved, type of the disclosure of which can affect"
offence committed by them the economic interest of the
and punishment awarded by country and also affect the
"concerned authority, names commercial confidence of the"
and designation of the bank. And such information is
"designated authority, who also exempt from disclosure under"
investigated the above case Section 8(1)(a)(d) & (e) of the RTI
"and his findings and Act (extracts enclosed). We,"
"punishment awarded."" therefore, are unable to accede to"
your request.
"4. Exact nature of irregularities In this regard, self explicit print"
committed by ICICI Bank in out taken from the website of
Hong Kong Securities and Futures
"Commission, Hong Kong is"
enclosed.
5. ICICI Bank’s Moscow Branch We do not have the information.
involved in money laundering
act.
6. Imposition of fine on ICICI We do not have any information to
7
Bank under Section 13 of the furnish in this regard.
PMLA for loss of documents in
floods .
7. Copy of the Warning or As regards your request for
‘Advisory Note’ issued twice copies/details of advisory letters to
issued to the bank in the last
"ICICI Bank, we may state that"
two years and reasonssuch information is exempt from
recorded therein. disclosure under Section 8(1)(a)(d)
and (e) of the RTI Act. The
Name and designation of the scrutiny of records of the ICICI
authority who conducted this Bank is conducted by our
check and his decision to Department of Banking
issue an advisory note only Supervision (DBS). The Chief
instead of penalties to be General Manager-in charge of the
"imposed under the Act. DBS, Centre Office Reserve Bank"
of India is Shri S. Karuppasamy.
"5. In this matter, it has been alleged by the petitioner RBI"
that the respondent is aggrieved on account of his application
form for three-in-one account with the Bank and ICICI
"Securities Limited (ISEC) lost in the floods in July, 2005 and"
"because of non-submission of required documents, the"
"Trading account with ISEC was suspended, for which"
"respondent approached the District Consumer Forum, which"
rejected the respondent’s allegations of tempering of records
and dismissed the complaint of the respondent. His appeal
was also dismissed by the State Commission. Respondent
then moved an application under the Act of 2005 pertaining to
8
the suspension of operation of his said trading account. As
the consumer complaint as well as the abovementioned
"application did not yield any result for the respondent, he"
"made an application under the Act before the CPIO, SEBI,"
"appeal to which went up to the CIC, the Division Bench of"
which disposed of his appeal upholding the decision of the
"CPIO and the Appellate Authority of SEBI. Thereafter, in"
"August 2009, respondent once again made the present"
application under the Act seeking aforesaid information.
"Being aggrieved by the order of the appellate authority,"
"respondent moved second appeal before the CIC, who by the"
impugned order directed the CPIO of RBI to furnish
information pertaining to Advisory Notes as requested by the
"respondent within 15 working days. Hence, RBI approached"
Bombay High Court by way of writ petition.
"6. In Transfer Case No. 93 of 2015, the Respondent sought"
following information from the CPIO of National Bank for
"Agriculture and Rural Development under the Act of 2005,"
reply to which is tabulated hereunder:-
9
Sl. Information Sought Reply
No.
1. Copies of inspection reports of Furnishing of information is
Apex Co-operative Banks of exempt under Section 8(1)(a) of the
various States/Mumbai DCCB RTI Act.
from 2005 till date
2. Copies of all correspondences Different Departments in NABARD
with Maharashtra State deal with various issues related to
Govt./RBI/any other agency of MSCB. The query is general in
State/Central Co-operative Bank nature. Applicant may please be
"from January, 2010 till date. specific in query/information"
sought.
3. Provide confirmed/draft minutes Furnishing of information is
of meetings of Governing exempt under Sec. 8(1)(d) of the
Board/Board of RTI Act.
Directors/Committee of Directors
"of NABARD from April, 2007 till"
date
4. Provide information on Compliance available on the
compliance of Section 4 of RTI website of NABARD i.e.
"Act, 2005 by NABARD www.nabard.org"
5. Information may be provided on a -
CD
7. The First Appellate Authority concurred with the CPIO
and held that inspection report cannot be supplied in terms of
Section 8(1)(a) of the RTI Act. The Respondent filed Second
"Appeal before the Central Information Commission, which was"
allowed. The RBI filed writ petition before the High Court
challenging the order of the CIC dated 14.11.2011 on identical
10
issue and the High Court stayed the operation of the order of
the CIC.
"8. In Transfer Case No. 94 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:"
Sl. Information Sought Reply
No.
1. As mentioned at 2(a) what is Pursuant to the then Finance
RBI doing about uploading the Minister’s Budget Speech made in
"entire list of Bank defaulters Parliament on 28th February, 1994,"
on the bank’s website? When in order to alert the banks and FIs
will it be done? Why is it not and put them on guard against the
done? defaulters to other lending
institutions. RBI has put in place
scheme to collect details about
borrowers of banks and FIs with
outstanding aggregating Rs. 1 crore
and above which are classified as
‘Doubtful’ or ‘Loss or where suits
"are filed, as on 31st March and 30th"
September each year. In February
"1999, Reserve Bank of India had"
also introduced a scheme for
collection and dissemination of
information on cases of willful
default of borrowers with
outstanding balance of Rs. 25 lakh
"and above. At present, RBI"
disseminates list of above said non
suit filed ‘doubtful’ and ‘loss’
borrowed accounts of Rs.1 crore
and above on half-yearly basis (i.e.
as on March 31 and September 30)
to banks and FIs. for their
confidential use. The list of
non-suit filed accounts of willful
defaulters of Rs. 25 lakh and above
is also disseminated on quarterly
11
basis to banks and FIs for their
confidential use. Section 45 E of
the Reserve Bank of India Act 1934
prohibits the Reserve Bank from
disclosing ‘credit information’
except in the manner provided
therein.
"(iii) However, Banks and FIs"
"were advised on October 1, 2002 to"
furnish information in respect of
suit-filed accounts between Rs. 1
lakh and Rs. 1 crore from the
"period ended March, 2002 in a"
phased manner to CIBIL only.
CIBIL is placing the list of
defaulters (suit filed accounts) of
Rs. 1 crore and above and list of
willful defaulters (suit filed
accounts) of Rs. 25 lakh and above
"as on March 31, 2003 and onwards"
on its website (www.cibil.com)
9. The Central Information Commission heard the parties
through video conferencing. The CIC directed the CPIO of the
petitioner to provide information as per the records to the
Respondent in relation to query Nos. 2(b) and 2(c) before
10.12.2011. The Commission has also directed the Governor
RBI to display this information on its website before
"31.12.2011, in fulfillment of its obligations under Section 4(1)"
"(b) (xvii) of the Right to Information Act, 2005 and to update it"
each year.
12
"10. In Transfer Case No.95 of 2015, following information"
was sought and reply to it is tabulated hereunder:
Sl. Information Sought Reply
No.
1. Complete and detailed information As the violations of which
including related the banks were issued
documents/correspondence/file Show Cause Notices and
noting etc of RBI on imposing fines on subsequently imposed
some banks for violating rules like also penalties and based on the
referred in enclosed news clipping findings of the Annual
Financial Inspection (AFI) of
"2. Complete list of banks which were the banks, and the"
issued show cause notices before fine information is received by
"was imposed as also referred in us in a fiduciary capacity,"
enclosed news clipping mentioning the disclosure of such
also default for which show cause information would
notice was issued to each of such prejudicially affect the
banks economic interests of the
State and harm the bank’s
competitive position. The
SCNs/findings/reports/
associated
correspondences/orders are
therefore exempt from
disclosure in terms of the
provisions of Section 8(1)(a)
"(d) and (e) of the RTI Act,"
2005.
2. Complete list of banks which were -do-
issued show cause notices before fine
was imposed as also referred in
enclosed news clippings mentioning
also default for which show cause
notice was issued to each of such
banks.
3. List of banks out of those in query (2) Do
above where fine was not imposed
giving details like if their reply was
satisfactory etc.
4. List of banks which were ultimately The names of the 19 banks
found guilty and fines mentioning also and details of penalty
amount of fine on each of the bank imposed on them are
13
and criterion to decide fine on each of furnished in Annex 1.
the bank Regarding the criterion for
"deciding the fine, the"
penalties have been
imposed on these banks for
contravention of various
directions and instructions
such as failure to carry out
proper due diligence on
user appropriateness and
"suitability of products,"
selling derivative products
to users not having proper
"risk Management policies,"
not verifying the
underlying /adequacy of
underlying and eligible
limits under past
"performance route, issued"
by RBI in respect of
derivative transactions.
5. Is fine imposed /action taken on some No other bank was
other banks also other than as penalized other than those
"mentioned in enclosed news clipping mentioned in the Annex, in"
the context of press release
No.2010-2011/1555 of
"April 26, 2011"
"6. If yes please provide details Not Applicable, in view of"
the information provided in
query No.5
7. Any other information The query is not specific.
8. File notings on movement of this RTI Copy of the note is
petition and on every aspect of this enclosed.
RTI Petition
"11. In the Second Appeal, the CIC heard the respondent via"
telephone and the petitioner through video conferencing. As
14
"directed by CIC, the petitioner filed written submission. The"
CIC directed the CPIO of the Petitioner to provide complete
information in relation to queries 1 2 and 3 of the original
application of the Respondent before 15.12.2011.
"12. In Transfer Case No. 96 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
1. Before the Orissa High Court RBI The Information sought by you is
has filed an affidavit stating that exempted under Section 8(1)(a) & (e)
"the total mark to market losses of RTI Act, which state as under;"
on account of currency
derivatives is to the tune of more 8(1) notwithstanding anything
"than Rs. 32,000 crores Please contained in this Act, there shall be"
give bank wise breakup of the no obligation to give any citizen
MTM Losses
(a) information disclosure of
which would prejudicially affect
the sovereignty and integrity of
India the security strategic
scientific or economic interests of
"the state, relation with foreign"
State or lead to incitement of an
offence.
(e) Information available to a
person in his fiduciary
relationship unless the competent
authority is satisfied that larger
public interest warrants the
disclosure of such information.
2. What is the latest figure available Please refer to our response to 1
with RBI of the amount of losses above.
suffered by Indian Business
15
houses? Please furnish the latest
figures bank wise and customer
wise.
3. Whether the issue of derivative We have no information in this
losses to Indian exporters was matter.
discussed in any of the meetings
of Governor/Deputy Governor or
senior official of the Reserve
Bank of India? If so please
furnish the minutes of the
meeting where the said issue was
discussed
4. Any other Action Taken Reports We have no information in this
by RBI in this regard. matter.
13. The CIC allowed the second appeal and directed the CPIO
FED of the Petitioner to provide complete information in
"queries 1, 2, 9 and 10 of the original application of the"
"Respondent before 05.01.2012. The CPIO, FED complied with"
"the order of the CIC in so far queries 2, 9 and 10 are"
concerned. The RBI filed writ petition for quashing the order of
CIC so far as it directs to provide complete information as per
record on query No.1.
"14. In Transfer Case No. 97 of 2015, the Respondent sought"
following information from the CPIO of National Bank for
16
"Agriculture and Rural Development under the Act of 2005,"
reply to which is tabulated hereunder:-
Sl. Information Sought Reply
No.
1. The report made by NABARD regarding 86 Please refer to your
N.P.A. Accounts for Rs. 3806.95 crore of application dated 19
"Maharashtra State Co-operative Bank Ltd. (if April, 2011 seeking"
any information of my application is not information under the
"available in your Office/Department/ RTI Act, 2005 which"
"Division/Branch, transfer this application to was received by us on"
"the concerned Office/Department/ 06th May, 2011. In"
"Division/Branch and convey me accordingly this connection, we"
as per the provision of Section 6 (3) of Right advise that the
"to Information Act, 2005. questions put forth by"
you relate to the
observations made in
the Inspection Report
of NABARD pertaining
to MSCB which are
confidential in nature.
Since furnishing the
information would
impede the process of
investigation or
apprehension or
prosecution of
"offenders, disclosure"
of the same is
exempted under
Section 8(1)(h) of the
Act.
"15. In Transfer Case No. 98 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
17
Sl. Information Sought Reply
No.
1. What contraventions and violations were The bank was penalized
made by SCB in respect of RBI instructions along with 18 other
on derivatives for which RBI has imposed banks for contravention
penalty of INR 10 lakhs on SCB in exercise of various instructions
of its powers vested under Section 47(1)(b) issued by the Reserve
"of Banking Regulation Act, 1949 and as Bank of India in respect"
"stated in the RBI press release dated April of derivatives, such as,"
"26, 2011 issued by Department of failure to carry out due"
Communications RBI diligence in regard to
"suitability of products,"
selling derivative
products to users not
having risk
management policies
and not verifying the
underlying/adequacy of
underlying and eligible
limits under past
performance route. The
information is also
available on our
website under press
releases.
2. Please provide us the copies/details of all Complaints are received
"the complaints filed with RBI against SCB, by Reserve Bank of"
accusing SCB of mis-selling derivative India and as they
"products, failure to carry out due diligence constitute the third"
"in regard to suitability of products, not party information, the"
verifying the underlying/adequacy of information requested
underlying and eligible limits under past by you cannot be
performance and various other disclosed in terms of
non-compliance of RBI instruction on Section 8(1)(d) of the
"derivatives. RTI Act, 2005."
"Also, please provide the above information"
in the following format
. Date of the complaint
Name of the complaint
Subject matter of the complaint
Brief description of the facts and
accusations made by the complaint.
18
Any other information available with RBI
with respect to violation/contraventions by
SCB of RBI instructions on derivatives.
3. Please provide us the copies of all the The action has been
written replies/correspondences made by taken against the bank
SCB with RBI and the recordings of all the based on the findings of
oral submissions made by SCB to defend the Annual Financial
and explain the violations/contraventions Inspection (AFI) of the
made by SCB bank which is
conducted under the
provisions of Sec.35 of
"the BR Act, 1949. The"
findings of the
inspection are
confidential in nature
intended specifically for
the supervised entities
and for corrective
action by them. The
information is received
by us in fiduciary
capacity disclosure of
which may prejudicially
affect the economic
interest of the state.
As such the
information cannot be
disclosed in terms of
Section 8(1) (a) and (e)
"of the RTI Act, 2005"
4. Please provide us the details/copies of the -do-
"findings recordings, enquiry reports,"
directive orders file notings and/or any
information on the investigations conducted
by RBI against SCB in respect of
non-compliance by SCB thereby
establishing violations by SCBV in respect
of non compliances of RBI instructions on
derivatives.
Please also provide the above information
in the following format.
. Brief violations/contraventions made by
SCB
. In brief SCB replies/defense/explanation
19
against each violations/contraventions
made by it under the show cause notice.
. RBI investigations/notes/on the SCB
Replies/defense/explanations for each of
the violation/contravention made by SCB.
. RBI remarks/findings with regard to the
violations/contraventions made by SCB.
"16. In Transfer Case No. 99 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
"1. That, what action has the department 1. Enquiry was"
taken against scams/financial carried out against
irregularities of United Mercantile scams/financial
Cooperative Bank Ltd as mentioned in the irregularities of United
enclosed published news. Provide day to Mercantile Cooperative
day progress report of the action taken. Bank Ltd. as mentioned
in the enclosed
published news.
2. Note/explanation
has been called for from
the bank vide our letter
"dated 8th July, 2011"
regarding errors
mentioned in enquiry
report.
3. The other
information asked here
is based on the
conclusions of
Inspection Report. We
would like to state that
conclusions found
20
during inspections are
confidential and the
reports are finalized on
the basis of information
received from banks. We
received the information
from banks in a
confident capacity.
"Moreover, disclosure of"
such information may
cause damage to the
banking system and
financial interests of the
state. Disclosure of
such type of information
is exempted under
Section 8(1)(a) and (e) of
"RTI Act, 2005."
2. That permission for opening how many United Mercantile
extension counters was obtained by United Cooperative Bank Ltd.
"Mercantile Cooperative Bank Ltd from RBI. was permitted to open 5,"
Provide details of expenditure incurred for extension counters.
constructing the extension counters. Had
the bank followed tender system for these The information
"constructions, if yes, provide details of regarding expenditure"
concerned tenders. incurred on
construction of these
extension counters and
tenders are not available
with Reserve Bank of
India.
"17. In Transfer Case No. 100 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
21
Sl. Information Sought Reply
No.
1. Under which Grade The George Town The classification of
"Co-operative Bank Ltd., Chennai, has been banks into various"
categorised as on 31.12.2006? grades are done on the
basis of inspection
findings which is based
on information/
documents obtained in
a fiduciary capacity and
cannot be disclosed to
outsiders. It is also
exempted under Section
8(1)(e) of right to
"Information Act, 2005."
"18. The Appellate Authority observed that the CPIO, UBD has"
replied that the classification of banks into various grades is
done on the basis of findings recorded in inspection which are
based on information/documents obtained in a fiduciary
"capacity and cannot be disclosed to outsiders. The CPIO, UBD"
has stated that the same is exempted under Section 8(1)(e) of
RTI Act. Apart from the fact that information sought by the
"appellant is sensitive and cannot be disclosed, it could also"
harm the competitive position of the co-operative bank.
"Therefore, exemption from disclosure of the Information is"
available under Section 8(1)(d) of the RTI Act.
22
"19. In Transfer Case No. 101 of 2015, with regard to"
"Deendayal Nagri Shakari Bank Ltd, District Beed, the"
Respondent sought following information from the CPIO of RBI
"under the Act of 2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
1. Copies of complaints received by RBI Disclosure of
"against illegal working of the said bank, information regarding"
including violations of the Standing complaints received
Orders of RBI as well as the provisions from third parties
"under Section 295 of the Companies Act, would harm the"
1956. competitive position of a
third party. Further
such information is
maintained in a
fiduciary capacity and
is exempted from
disclosure under
Sections 8(1)(d) and (e)
of the RTI Act.
2. Action initiated by RBI against the said (a) A penalty of Rs. 1
"bank, including all correspondence lakh was imposed on"
between RBI and the said bank officials. Deendayal Nagri
Sahakari Bank Ltd. for
violation of directives on
loans to directors/their
relatives/concerns in
which they are
interested. The bank
paid the penalty on
08.10.2010.
(b) As regards
correspondence
"between RBI and the,"
"co-operative bank, it is"
advised that such
information is
maintained by RBI in
fiduciary capacity and
23
hence cannot be given
to outsiders. Moreover
disclosure of such
information may harm
the interest of the bank
and banking system.
Such information is
exempt from disclosure
under Section 8(1)(a)
and (e) of the RTI Act.
"3. Finding of the enquiry made by RBI, Such information is"
actions proposed and taken against the maintained by the bank
"bank and its officials-official notings, in a fiduciary capacity"
"decisions, and final orders passed and and is obtained by RBI"
issued. during the course of
inspection of the bank
and hence cannot be
given to outsiders. The
disclosure of such
information would
harm the competitive
position of a third
party. Such
"information is,"
"therefore, exempted"
from disclosure under
Section 8(1)(d) and (e)
of the RTI Act.
As regards action taken
"against the bank, are"
reply at S. No.2 (a)
above.
4. Confidential letters received by RBI from See reply at S. NO.2 (a)
the Executive Director of Vaishnavi above.
Hatcheries Pvt. Ltd. complaining about
the illegal working and pressure policies of
the bank and its chairman for misusing
the authority of digital signature for
sanction of the backdated resignations of
the chairman of the bank and few other
directors of the companies details of
action taken by RBI on that.
24
20. The First Appellate Authority observed that the CPIO had
furnished the information available on queries 2 and 4.
Further information sought in queries 1 and 3 was exempted
under Section 8(1)(a)(d) and (e) of the RTI Act.
"21. Various transfer petitions were, therefore, filed seeking"
transfer of the writ petitions pending before different High
"Courts. On 30.5.2015, while allowing the transfer petitions"
filed by Reserve Bank of India seeking transfer of various writ
"petitions filed by it in the High Courts of Delhi and Bombay,"
this Court passed the following orders:
"""Notice is served upon the substantial number of"
respondents. Learned counsel for the respondents
"have no objection if Writ Petition Nos. 8400 of 2011,"
"8605 of 2011, 8693 of 2011, 8583 of 2011, 32 of 2012,"
"685 of 2012, 263 of 2012 and 1976 of 2012 pending in"
the High Court of Delhi at New Delhi and Writ Petition
"(L) Nos. 2556 of 2011, 2798 of 2011 and 4897 of 2011"
pending in the High Court of Bombay are transferred
"to this Court and be heard together. In the meanwhile,"
the steps may be taken to serve upon the unserved
respondents.
"Accordingly, the transfer petitions are allowed and the"
above mentioned writ petitions are withdrawn to this
Court. The High Court of Delhi and the High Court of
Bombay are directed to remit the entire record of the
"said writ petitions to this Court within four weeks."""
25
"22. Mr. T.R. Andhyarujina, learned senior counsel appearing"
"for the petitioner-Reserve Bank of India, assailed the"
impugned orders passed by the Central Information
Commissioner as illegal and without jurisdiction. Learned
Counsel referred various provisions of The Reserve Bank of
"India Act, 1934; The Banking Regulation Act, 1949 and The"
"Credit Information Companies (Regulation) Act, 2005 and"
made the following submissions:-
I) The Reserve Bank of India being the statutory
authority has been constituted under the Reserve Bank of
"India Act, 1934 for the purpose of regulating and"
controlling the money supply in the country. It also acts as
statutory banker with the Government of India and State
"Governments and manages their public debts. In addition,"
it regulates and supervises Commercial Banks and
Cooperative Banks in the country. The RBI exercises
"control over the volume of credit, the rate of interest"
chargeable on loan and advances and deposits in order to
ensure the economic stability. The RBI is also vested with
"the powers to determine ""Banking Policy"" in the interest of"
"banking system, monetary stability and sound economic"
growth.
The RBI in exercise of powers of powers conferred under
"Section 35 of the Banking Regulation Act, 1949 conducts"
inspection of the banks in the country.
II) The RBI in its capacity as the regulator and
supervisor of the banking system of the country access to
various information collected and kept by the banks. The
inspecting team and the officers carry out inspections of
different banks and much of the information accessed by
the inspecting officers of RBI would be confidential.
"Referring Section 28 of the Banking Regulation Act, it was"
submitted that the RBI in the public interest may publish
26
"the information obtained by it, in a consolidated form but"
not otherwise.
III) The role of RBI is to safeguard the economic and
financial stability of the country and it has large contingent
of expert advisors relating to matters deciding the economy
of the entire country and nobody can doubt the bona fide of
"the bank. In this connection, learned counsel referred the"
decision of this Court in the case of Peerless General
Finance and Investment Co. Limited and Another Vs.
"Reserve Bank of India, 1992 Vol. 2 SCC 343."
IV) Referring the decision in the case of B.
Suryanarayana Vs. N. 1453 The Kolluru Parvathi
"Co-Op. Bank Ltd., 1986 AIR (AP) 244, learned counsel"
submitted that the Court will be highly chary to enter into
and interfere with the decision of Reserve Bank of India.
Learned Counsel also referred to the decision in the case of
Peerless General Finance and Investment Co. Limited
"and Another Vs. Reserve Bank of India, 1992 Vol. 2 SCC"
343 and contended that Courts are not to interfere with the
economic policy which is a function of the experts.
V) That the RBI is vested with the responsibility of
regulation and supervision of the banking system. As part
"of its supervisory role, RBI supervises and monitors the"
banks under its jurisdiction through on-site inspection
conducted on annual basis under the statutory powers
derived by it under section 35 of the Banking Regulation
"Act 1949, off-site returns on key financial parameters and"
engaging banks in dialogue through periodical meetings.
RBI may take supervisory actions where warranted for
violations of its guidelines/directives. The supervisory
"actions would depend on the seriousness of the offence,"
systemic implications and may range from imposition of
"penalty, to issue of strictures or letters of warning. While"
RBI recognizes and promotes enhanced transparency in
"banks disclosures to the public, as transparency"
"strengthens market discipline, a bank may not be able to"
disclose all data that may be relevant to assess its risk
"profile, due to the inherent need to preserve confidentially"
"in relation to its customers. In this light, while mandatory"
disclosures include certain prudential parameters such as
"capital adequacy, level of Non Performing Assets etc., the"
supervisors themselves may not disclose all or some
"information obtained on-site or off-site. In some countries,"
"wherever there are supervisory concerns, ""prompt corrective"
"action"" programmes are normally put in place, which may"
or may not be publicly disclosed. Circumspection in
disclosures by the supervisors arises from the potential
"market reaction that such disclosure might trigger, which"
27
"may not be desirable. Thus, in any policy of transparency,"
there is a need to build processes which ensure that the
benefits of supervisory disclosure are appropriately weighed
"against the risk to stakeholders, such as depositors."
"VI) As per the RBI policy, the reports of the annual"
"financial inspection, scrutiny of all banks/ financial"
institutions are confidential document cannot be disclosed.
"As a matter of fact, the annual financial inspection/"
scrutiny report reflect the supervisor’s critical assessment
of banks and financial institutions and their functions.
Disclosure of these scrutiny and information would create
misunderstanding/ misinterpretation in the minds of the
"public. That apart, this may prove significantly counter"
productive. Learned counsel submitted that the disclosure
of information sought for by the applicant would not serve
the public interest as it will give adverse impact in public
confidence on the bank. This has serious implication for
financial stability which rests on public confidence. This
will also adversely affect the economic interest of the State
and would not serve the larger public interest.
23. The specific stand of petitioner Reserve Bank of India is
that the information sought for is exempted under Section 8(1)
"(a), (d) and (e) of the Right to Information Act, 2005. As the"
"regulator and supervisor of the banking system, the RBI has"
discretion in the disclosure of such information in public
interest.
"24. Mr. Andhyarujina, learned senior counsel, referred"
various decisions to the High Court and submitted that the
disclosure of information would prejudicially affect the
"economic interest of the State. Further, if the information"
28
sought for is sensitive from the point of adverse market
reaction leading to systematic crisis for financial stability.
25. Learned senior counsel put heavy reliance on the Full
Bench decision of the Central Information Commissioner and
"submitted that while passing the impugned order, the Central"
Information Commissioner completely overlooked the Full
Bench decision and ignored the same. According to the
"learned counsel, the Bench, which passed the impugned"
"order, is bound to follow the Full Bench decision. The"
Commission also erred in holding that the Full Bench decision
is per incuriam as the Full Bench has not considered the
statutory provisions of Section 8 (2) of the Right to Information
"Act, 2005."
26. Learned senior counsel also submitted that the
Commission erred in holding that even if the information
"sought for is exempted under Section 8(1) (a), (d) or (e) of the"
"Right to Information Act, Section 8(2) of the RTI Act would"
mandate the disclosure of the information.
29
27. Learned senior counsel further submitted that the basic
"question of law is whether the Right to Information Act, 2005"
overrides various provisions of special statutes which confer
confidentiality in the information obtained by the RBI.; If the
"Respondents are right in their contention, these statutory"
"provisions of confidentiality in the Banking Regulation Act,"
"1949, the Reserve Bank of India Act, 1934 and the Credit"
"Information Companies (Regulation) Act, 2005 would be"
"repealed or overruled by the Right to Information Act, 2005."
"28. Under the Banking Regulation Act, 1949, the Reserve"
Bank of India has a right to obtain information from the banks
under Section 27. These information can only be in its
discretion published in such consolidated form as RBI deems
fit. Likewise under Section 34A production of documents of
confidential nature cannot be compelled. Under sub-section
"(5) of Section 35, the Reserve Bank of India may carry out"
inspection of any bank but its report can only be disclosed if
the Central Government orders the publishing of the report of
the Reserve Bank of India when it appears necessary.
30
"29. Under Section 45E of the Reserve Bank of India Act,"
"1934, disclosure of any information relating to credit"
information submitted by banking company is confidential
and under Section 45E(3) notwithstanding anything contained
"in any law no court, tribunal or authority can compel the"
Reserve Bank of India to give information relating to credit
information etc.
30. Under Section 17(4) of the Credit Information Companies
"(Regulation) Act, 2005, credit information received by the"
credit information company cannot be disclosed to any person.
"Under Section 20, the credit information company has to"
adopt privacy principles and under Section 22 there cannot be
unauthorized access to credit information.
31. It was further contended that the Credit Information
"Companies Act, 2005 was brought into force after the Right to"
"Information act, 2005 w.e.f. 14.12.2006. It is significant to"
"note that Section 28 of Banking Regulation Act, 1949 was"
amended by the Credit Information Companies (Regulation)
"Act, 2005. This is a clear indication that the Right to"
31
"Information Act, 2005 cannot override credit information"
sought by any person in contradiction to the statutory
provisions for confidentiality.
32. This is in addition to other statutory provisions of privacy
"in Section 44 of State Bank of India Act, 1955, Section 52,"
"State Bank of India (Subsidiary Banks) Act, 1959, Section 13"
of the Banking Companies (Acquisition & Transfer of
"Undertakings) Act, 1970."
"33. The Right to Information Act, 2005 is a general provision"
which cannot override specific provisions relating to
confidentiality in earlier legislation in accordance with the
principle that where there are general words in a later statute
it cannot be held that the earlier statutes are repealed altered
or discarded.
34. Learned counsel submitted that Section 22 of the Right
"to Information Act, 2005 cannot have the effect of nullifying"
and repealing earlier statutes in relation to confidentiality.
This has been well settled by this Court in
32
a) Raghunath vs. state of Karnataka 1992(1) SCC
335 at p.348 pages 112 and 114
"b) ICICI Bank vs. SIDCO Leather etc., 2006(10)"
"SCC 452 at p. 466, paras 36 & 37"
"c) Central Bank vs. Kerala, 2009 (4) SCC 94 at p."
132-133 para 104
"d) AG Varadharajalu vs. Tamil Nadu, 1998 (4)"
SCC 231 at p. 236 para 16.
"Hence, the Right to Information Act, 2005 cannot override the"
provisions for confidentiality conferred on the RBI by the
earlier statutes referred to above.
"35. The Preamble of the RTI Act, 2005 itself recognizes the"
fact that since the revealing of certain information is likely to
"conflict with other public interests like ""the preservation of"
"confidentiality of sensitive information"", there is a need to"
harmonise these conflicting interests. It is submitted that
certain exemptions were carved out in the RTI Act to
harmonise these conflicting interests. This Court in Central
Board of Secondary Education and Anr. vs. Aditya
"Bandopadhyay and Ors, (2011)8 SCC 497, has observed as"
under:-
33
"""When trying to ensure that the right to information"
does not conflict with several other public interests (which
"includes efficient operations of the Governments,"
"preservation of confidentiality of sensitive information,"
"optimum use of limited fiscal resources, etc.), it is difficult"
to visualise and enumerate all types of information which
require to be exempted from disclosure in public interest.
The legislature has however made an attempt to do so. The
enumeration of exemptions is more exhaustive than the
"enumeration of exemptions attempted in the earlier Act,"
"that is, Section 8 of the Freedom to Information Act, 2002."
The courts and Information Commissions enforcing the
provisions of the RTI Act have to adopt a purposive
"construction, involving a reasonable and balanced"
"approach which harmonises the two objects of the Act,"
while interpreting Section 8 and the other provisions of the
"Act."""
36. Apart from the legal position that the Right to
"Information Act, 2005 does not override statutory provisions"
"of confidentiality in other Act, it is submitted that in any case"
"Section 8(1)(a) of the Right to Information Act, 2005 states"
that there is no obligation to give any information which
pre-judiciously affects the economic interests of the States.
Disclosure of such vital information relating to banking would
pre-judiciously affect the economic interests of the State. This
was clearly stated by the Full Bench of the Central Information
Commission by its Order in the case of Ravin Ranchchodlal
Patel (supra). Despite this emphatic ruling individual
Commissioners of the Information have disregarded it by
34
holding that the decision of the Full Bench was per incurium
and directed disclosure of information.
"37. Other exceptions in Section 8, viz 8(1)(a)(d), 8(1)(e) would"
"also apply to disclosure by the RBI and banks. In sum,"
learned senior counsel submitted that the RBI cannot be
directed to disclose information relating to banking under the
"Right to Information Act, 2005."
"38. Mr. Prashant Bhushan, learned counsel appearing for"
"the respondents in Transfer Case Nos.94 & 95 of 2015, began"
his arguments by referring the Preamble of the Constitution
and submitted that through the Constitution it is the people
"who have created legislatures, executives and the judiciary to"
exercise such duties and functions as laid down in the
constitution itself.
39. The right to information regarding the functioning of
public institutions is a fundamental right as enshrined in
Article 19 of the Constitution of India. This Hon’ble Court has
declared in a plethora of cases that the most important value
35
for the functioning of a healthy and well informed democracy
is transparency. Mr. Bhushan referred Constitution Bench
judgment of this Court in the case of State of U.P. vs. Raj
"Narain, AIR 1975 SC 865, and submitted that it is a"
"Government’s responsibility like ours, where all the agents of"
"the public must be responsible for their conduct, there can be"
but few secrets. The people of this country have a right to
"know every public act, everything that is done in a public way,"
"by their functionaries. The right to know, which is derived"
"from the concept of freedom of speech, though not absolute, is"
"a factor which should make one wary, when secrecy is claimed"
"for transactions which can, at any rate, have no repercussion"
"on public security. To cover with veil of secrecy, the common"
routine business is not in the interest of public.
40. In the case of S.P. Gupta v. President of India and
"Ors., AIR 1982 SC 149, a seven Judge Bench of this Court"
made the following observations regarding the right to
information:-
"""There is also in every democracy a certain amount of"
"public suspicion and distrust of Government, varying of"
"course from time to time according to its performance,"
36
which prompts people to insist upon maximum exposure of
its functioning. It is axiomatic that every action of the
Government must be actuated by public interest but even
"so we find cases, though not many, where Governmental"
action is taken not for public good but for personal gain or
other extraneous considerations. Sometimes Governmental
action is influenced by political and other motivations and
"pressures and at times, there are also instances of misuse"
"or abuse of authority on the part of the executive. Now, if"
secrecy were to be observed in the functioning of
Government and the processes of Government were to be
"kept hidden from public scrutiny, it would tend to promote"
"and encourage oppression, corruption and misuse or abuse"
"of authority, for it would all be shrouded in the veil of"
secrecy without any public accountability. But if there is an
open Government with means of information available to
"the public, there would be greater exposure of the"
functioning of Government and it would help to assure the
people a better and more efficient administration. There can
be little doubt that exposure to public gaze and scrutiny is
one of the surest means of achieving a clean and healthy
administration. It has been truly said that an open
Government is clean Government and a powerful safeguard
against political and administrative aberration and
"inefficiency."""
41. In the case of the Union of India vs. Association for
"Democratic Reforms, AIR 2002 SC 2112, while declaring that"
it is part of the fundamental right of citizens under Article
19(1)(a) to know the assets and liabilities of candidates
"contesting election to the Parliament or the State Legislatures,"
a three Judge Bench of this Court held unequivocally that:-
"""The right to get information in a democracy is recognized all"
throughout and is a natural right flowing from the concept of
"democracy (Para 56)."" Thereafter, legislation was passed"
37
"amending the Representation of People Act, 1951 that"
candidates need not provide such information. This Court in
"the case of PUCL vs. Union of India, (2003) 4 SCC 399,"
"struck down that legislation by stating: ""It should be properly"
understood that the fundamental rights enshrined in the
"Constitution such as, right to equality and freedoms have no"
"fixed contents. From time to time, this Court has filled in the"
skeleton with soul and blood and made it vibrant. Since the
"last more than 50 years, this Court has interpreted Articles"
"14, 19 and 21 and given meaning and colour so that the"
"nation can have a truly republic democratic society."""
"42. The RTI Act, 2005, as noted in its very preamble, does"
not create any new right but only provides machinery to
effectuate the fundamental right to information. The
institution of the CIC and the SICs are part of that machinery.
"The preamble also inter-alia states ""... democracy requires an"
informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to
38
hold Governments and their instrumentalities accountable to
"the governed."""
43. The submission of the RBI that exceptions be carved out
of the RTI Act regime in order to accommodate provisions of
RBI Act and Banking Regulation Act is clearly misconceived.
"RTI Act, 2005 contains a clear provision (Section 22) by virtue"
of which it overrides all other Acts including Official Secrets
"Act. Thus, notwithstanding anything to the contrary"
contained in any other law like RBI Act or Banking Regulation
"Act, the RTI Act, 2005 shall prevail insofar as transparency"
"and access to information is concerned. Moreover, the RTI Act"
"2005, being a later law, specifically brought in to usher"
transparency and to transform the way official business is
"conducted, would have to override all earlier practices and"
laws in order to achieve its objective. The only exceptions to
access to information are contained in RTI Act itself in
Section 8.
39
"44. In T.C.No.94 of 2015, the RTI applicant Mr. P.P. Kapoor"
had asked about the details of the loans taken by the
"industrialists that have not been repaid, and he had asked"
about the names of the top defaulters who have not repaid
their loans to public sector banks. The RBI resisted the
disclosure of the information claiming exemption under
Section 8(1) (a) and 8(1)(e) of the RTI Act on the ground that
"disclosure would affect the economic interest of the country,"
and that the information has been received by the RBI from
the banks in fiduciary capacity. The CIC found these
arguments made by RBI to be totally misconceived in facts and
"in law, and held that the disclosure would be in public"
interest.
"45. In T.C.No.95 of 2015, the RTI applicant therein Mr."
Subhash Chandra Agrawal had asked about the details of the
show cause notices and fines imposed by the RBI on various
banks. The RBI resisted the disclosure of the information
"claiming exemption under Section 8(1)(a),(d) and 8(1) (e) of the"
RTI Act on the ground that disclosure would affect the
40
"economic interest of the country, the competitive position of"
the banks and that the information has been received by RBI
"in fiduciary capacity. The CIC, herein also, found these"
arguments made by RBI to be totally misconceived in facts and
in law and held that the disclosure would be in public interest.
46. In reply to the submission of the petitioner about
"fiduciary relationship, learned counsel submitted that the"
scope of Section 8(1)(e) of the RTI Act has been decided by this
Court in Central Board of Secondary Education vs. Aditya
"Bandopadhyay, (2011) 8 SCC 497, wherein, while rejecting"
the argument that CBSE acts in a fiduciary capacity to the
"students, it was held that:"
"""...In a philosophical and very wide sense, examining bodies"
"can be said to act in a fiduciary capacity, with reference to"
"students who participate in an examination, as a"
Government does while governing its citizens or as the
present generation does with reference to the future
generation while preserving the environment. But the word
‘information available to a person in his fiduciary
relationship’ are used in Section 8(1) (e) of the RTI Act in its
"normal and well recognized sense, that is to refer to persons"
"who act in a fiduciary capacity, with reference to specific"
beneficiary or beneficiaries who are to be expected to be
"protected or benefited by the action of the fiduciary."""
41
47. We have extensively heard all the counsels appearing for
the petitioner Banks and respondents and examined the law
and the facts.
"48. While introducing the Right to Information Bill, 2004 a"
serious debate and discussion took place. The then Prime
Minister while addressing the House informed that the RTI Bill
is to provide for setting out practical regime of right to
"information for people, to secure access to information under"
the control of public authorities in order to promote
transparency and accountability in the working of every public
authority. The new legislation would radically alter the ethos
and culture of secrecy through ready sharing of information by
the State and its agencies with the people. An era of
transparency and accountability in governance is on the anvil.
"Information, and more appropriately access to information"
would empower and enable people not only to make informed
choices but also participate effectively in decision making
processes. Tracing the origin of the idea of the then Prime
"Minister who had stated, ""Modern societies are information"
42
societies. Citizens tend to get interested in all fields of life and
"demand information that is as comprehensive, accurate and"
"fair as possible."" In the Bill, reference has also been made to"
the decision of the Supreme Court to the effect that Right to
Information has been held as inherent in Article 19 of our
"Constitution, thereby, elevating it to a fundamental right of the"
"citizen. The Bill, which sought to create an effective"
"mechanism for easy exercise of this Right, was held to have"
"been properly titled as ""Right to Information Act"". The Bill"
further states that a citizen has to merely make a request to
the concerned Public Information Officer specifying the
particulars of the information sought by him. He is not
"required to give any reason for seeking information, or any"
other personal details except those necessary for contacting
"him. Further, the Bill states:-"
"""The categories of information exempted from"
disclosure are a bare minimum and are contained in
clause 8 of the Bill. Even these exemptions are not
absolute and access can be allowed to them in public
interest if disclosure of the information outweighs
the harm to the public authorities. Such disclosure
has been permitted even if it is in conflict with the
"provisions of the Official Secrets Act, 1923."
"Moreover, barring two categories that relate to"
information disclosure - which may affect
43
"sovereignty and integrity of India etc., or information"
relating to Cabinet papers etc.-all other categories of
exempted information would be disclosed after
twenty years.
There is another aspect about which information is
to be made public. We had a lengthy discussion and
it is correctly provided in the amendment under
clause 8 of the Bill. The following information shall
be exempted from disclosure which would
prejudicially affect the sovereignty and integrity of
India; which has been expressly forbidden; which
may result in a breach of privileges of Parliament or
the Legislature; and also information pertaining to
defence matters. They are listed in clause 8 (a) to (g).
There are exceptions to this clause. Where it is
considered necessary that the information will be
"divulged in the interest of the State, that will be"
done. There must be transparency in public life.
There must be transparency in administration and
people must have a right to know what has actually
transpired in the secretariat of the State as well as
the Union Ministry. A citizen will have a right
because it will be safe to prevent corruption. Many
things are done behind the curtain. Many shoddy
deals take place in the secretariats of the Central
and State Governments and the information will
always be kept hidden. Such practice should not be
allowed in a democratic country like ours. Ours is a
republic. The citizenry should have a right to know
what transpired in the secretariat. Even Cabinet
"papers, after a decision has been taken, must be"
divulged as per the provisions of this amendment. It
"cannot be hidden from the knowledge of others."""
"49. Addressing the House, it was pointed out by the then"
"Prime Minister that in our country, Government expenditure"
both at the Central and at the level of the States and local
"bodies, account for nearly 33% of our Gross National Product."
"At the same time, the socio-economic imperatives require our"
44
Government to intervene extensively in economic and social
"affairs. Therefore, the efficiency and effectiveness of the"
"government processes are critical variables, which will"
determine how our Government functions and to what extent
it is able to discharge the responsibilities entrusted. It was
pointed out that there are widespread complaints in our
"country about wastefulness of expenditure, about corruption,"
and matter which have relations with the functioning of the
"Government. Therefore, it was very important to explore new"
effective mechanism to ensure that the Government will
purposefully and effectively discharge the responsibilities
entrusted to it.
50. Finally the Right to Information Act was passed by the
"Parliament called ""The Right to Information Act, 2005"". The"
Preamble states:-
"""An Act to provide for setting out the practical"
regime of right to information for citizens to secure
access to information under the control of public
"authorities, in order to promote transparency and"
accountability in the working of every public
"authority, the constitution of a Central Information"
Commission and State Information Commissions and
for matters connected therewith or incidental
thereto.
45
WHEREAS the Constitution of India has
established democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of information
which are vital to its functioning and also to contain
corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in
actual practice is likely to conflict with other public
interests including efficient operations of the
"Governments, optimum use of limited fiscal"
resources and the preservation of confidentiality of
sensitive information;
AND WHEREAS it is necessary to harmonise
these conflicting interest while preserving the
paramountcy of the democratic ideal;
"NOW, THEREFORE, it is expedient to provide"
for furnishing certain information to citizens who
"desire to have it."""
51. Section 2 of the Act defines various authorities and the
words. Section 2(j) defines right to information as under :-
"""2(j) ""right to information"" means the right to"
information accessible under this Act which is held
by or under the control of any public authority and
includes the right to-
"(i) inspection of work, documents, records;"
"(ii) taking notes, extracts, or certified"
copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of
"diskettes, floppies, tapes, video"
cassettes or in any other electronic
mode or through printouts where such
information is stored in a computer or
"in any other device;"""
46
52. Section 3 provides that all citizens shall have the right to
information subject to the provisions of this Act. Section 4
makes it obligatory on all public authorities to maintain
records in the manner provided therein. According to Section
"6, a person who desires to obtain any information under the"
Act shall make a request in writing or through electronic
means in English or Hindi in the official language of the area
in which the application is being made to the competent
authority specifying the particulars of information sought by
him or her. Sub-section (ii) of Section 6 provides that the
applicant making request for information shall not be required
to give any reason for requesting the information or any other
personal details except those that may be necessary for
contacting him. Section 7 lays down the procedure for
disposal of the request so made by the person under Section 6
"of the Act. Section 8, however, provides certain exemption"
from disclosure of information. For better appreciation
Section 8 is quoted hereinbelow:-
47
"""8. Exemption from disclosure of information.--"
"(1) Notwithstanding anything contained in this Act,"
"there shall be no obligation to give any citizen,--"
"(a) information, disclosure of which would prejudicially"
"affect the sovereignty and integrity of India, the"
"security, strategic, scientific or economic interests of"
"the State, relation with foreign State or lead to"
incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
"(c) information, the disclosure of which would cause a"
breach of privilege of Parliament or the State
Legislature;
"(d) information including commercial confidence, trade"
"secrets or intellectual property, the disclosure of which"
"would harm the competitive position of a third party,"
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary
"relationship, unless the competent authority is"
satisfied that the larger public interest warrants the
disclosure of such information;
(f) information received in confidence from foreign
government;
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or
identify the source of information or assistance given
in confidence for law enforcement or security
purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
"the Council of Ministers, Secretaries and other officers:"
"Provided that the decisions of Council of Ministers, the"
"reasons thereof, and the material on the basis of which"
the decisions were taken shall be made public after the
"decision has been taken, and the matter is complete,"
or over: Provided further that those matters which
come under the exemptions specified in this section
shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has not relationship to any
48
"public activity or interest, or which would cause"
unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the
State Public Information Officer or the appellate
"authority, as the case may be, is satisfied that the"
larger public interest justifies the disclosure of such
"information: Provided that the information, which"
cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
"Act, 1923 (19 of 1923) nor any of the exemptions"
"permissible in accordance with sub-section (1), a"
"public authority may allow access to information, if"
public interest in disclosure outweighs the harm to the
protected interests.
"(3) Subject to the provisions of clauses (a), (c) and (i) of"
"sub-section (1), any information relating to any"
"occurrence, event or matter which has taken place,"
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section: Provided that where any question arises as to
the date from which the said period of twenty years
"has to be computed, the decision of the Central"
"Government shall be final, subject to the usual"
"appeals provided for in this Act."""
53. The information sought for by the respondents from the
petitioner-Bank have been denied mainly on the ground that
such information is exempted from disclosure under Section
8(1)(a)(d) and (e) of the RTI Act.
54. Learned counsel appearing for the petitioner-Bank
mainly relied upon Section 8(1)(e) of the RTI Act taking the
49
stand that the Reserve Bank of India having fiduciary
relationship with the other banks and that there is no reason
to disclose such information as no larger public interest
"warrants such disclosure. The primary question therefore, is,"
whether the Reserve Bank of India has rightly refused to
disclose information on the ground of its fiduciary relationship
with the banks.
"55. The Advanced Law Lexicon, 3rd Edition, 2005, defines"
"fiduciary relationship as ""a relationship in which one person is"
under a duty to act for the benefit of the other on the matters
within the scope of the fiduciary relationship. Fiduciary
relationship usually arise in one of the four situations (1)
when one person places trust in the faithful integrity of
"another, who as a result gains superiority or influence over the"
"first, (2) when one person assumes control and responsibility"
"over another, (3) when one person has a duty to act or give"
advice to another on matters falling within the scope of the
"relationship, or (4) when there is specific relationship that has"
50
"traditionally be recognized as involving fiduciary duties, as"
"with a lawyer and a client, or a stockbroker and a customer."""
56. The scope of the fiduciary relationship consists of the
following rules:
"""(i) No Conflict rule- A fiduciary must not place"
himself in a position where his own interests conflicts
with that of his customer or the beneficiary. There
"must be ""real sensible possibility of conflict."
(ii) No profit rule- a fiduciary must not profit from
"his position at the expense of his customer, the"
beneficiary;
(iii) Undivided loyalty rule- a fiduciary owes
"undivided loyalty to the beneficiary, not to place"
himself in a position where his duty towards one
person conflicts with a duty that he owes to another
customer. A consequence of this duty is that a
fiduciary must make available to a customer all the
information that is relevant to the customer’s affairs
(iv) Duty of confidentiality- a fiduciary must only
use information obtained in confidence and must not
"use it for his own advantage, or for the benefit of"
"another person."""
57. The term fiduciary relationship has been well discussed
by this Court in the case of Central Board of Secondary
Education and Anr. vs. Aditya Bandopadhyay and Ors.
"(supra). In the said decision, their Lordships referred various"
authorities to ascertain the meaning of the term fiduciary
relationship and observed thus:-
51
"""20.1) Black’s Law Dictionary (7th Edition, Page 640)"
defines ‘fiduciary relationship’ thus:
"""A relationship in which one person is under a duty to"
act for the benefit of the other on matters within the
scope of the relationship. Fiduciary relationships -
"such as trustee-beneficiary, guardian-ward,"
"agent-principal, and attorney-client - require the"
highest duty of care. Fiduciary relationships usually
arise in one of four situations : (1) when one person
"places trust in the faithful integrity of another, who as"
"a result gains superiority or influence over the first, (2)"
when one person assumes control and responsibility
"over another, (3) when one person has a duty to act for"
or give advice to another on matters falling within the
"scope of the relationship, or (4) when there is a specific"
relationship that has traditionally been recognized as
"involving fiduciary duties, as with a lawyer and a client"
"or a stockbroker and a customer."""
20.2) The American Restatements (Trusts and Agency)
define ‘fiduciary’ as one whose intention is to act for
the benefit of another as to matters relevant to the
relation between them. The Corpus Juris Secundum
(Vol. 36A page 381) attempts to define fiduciary thus :
"""A general definition of the word which is sufficiently"
comprehensive to embrace all cases cannot well be
"given. The term is derived from the civil, or Roman, law."
"It connotes the idea of trust or confidence,"
"contemplates good faith, rather than legal obligation, as"
"the basis of the transaction, refers to the integrity, the"
"fidelity, of the party trusted, rather than his credit or"
"ability, and has been held to apply to all persons who"
"occupy a position of peculiar confidence toward others,"
and to include those informal relations which exist
"whenever one party trusts and relies on another, as"
well as technical fiduciary relations.
"The word ‘fiduciary,’ as a noun, means one who holds a"
"thing in trust for another, a trustee, a person holding"
"the character of a trustee, or a character analogous to"
"that of a trustee, with respect to the trust and"
confidence involved in it and the scrupulous good faith
"and candor which it requires; a person having the duty,"
"created by his undertaking, to act primarily for"
52
another’s benefit in matters connected with such
"undertaking. Also more specifically, in a statute, a"
"guardian, trustee, executor, administrator, receiver,"
"conservator, or any person acting in any fiduciary"
"capacity for any person, trust, or estate. Some"
"examples of what, in particular connections, the term"
has been held to include and not to include are set out
"in the note."""
"20.3) Words and Phrases, Permanent Edition (Vol. 16A,"
Page 41) defines ‘fiducial relation’ thus :
"""There is a technical distinction between a ‘fiducial"
relation’ which is more correctly applicable to legal
"relationships between parties, such as guardian and"
"ward, administrator and heirs, and other similar"
"relationships, and ‘confidential relation’ which includes"
"the legal relationships, and also every other"
relationship wherein confidence is rightly reposed and
is exercised.
"Generally, the term ‘fiduciary’ applies to any person"
who occupies a position of peculiar confidence towards
another. It refers to integrity and fidelity. It
"contemplates fair dealing and good faith, rather than"
"legal obligation, as the basis of the transaction. The"
term includes those informal relations which exist
"whenever one party trusts and relies upon another, as"
"well as technical fiduciary relations."""
20.4) In Bristol and West Building Society vs. Mothew
[1998 Ch. 1] the term fiduciary was defined thus :
"""A fiduciary is someone who has undertaken to act for"
and on behalf of another in a particular matter in
circumstances which give rise to a relationship of trust
and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty..... A fiduciary must
act in good faith; he must not make a profit out of his
trust; he must not place himself in a position where his
duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without
"the informed consent of his principal."""
53
20.5) In Wolf vs. Superior Court [2003 (107) California
"Appeals, 4th 25] the California Court of Appeals defined"
fiduciary relationship as under :
"""any relationship existing between the parties to the"
transaction where one of the parties is duty bound to
act with utmost good faith for the benefit of the other
party. Such a relationship ordinarily arises where
confidence is reposed by one person in the integrity of
"another, and in such a relation the party in whom the"
"confidence is reposed, if he voluntarily accepts or"
"assumes to accept the confidence, can take no"
advantage from his acts relating to the interests of the
other party without the latter’s knowledge and
"consent."""
21. The term ‘fiduciary’ refers to a person having a duty
"to act for the benefit of another, showing good faith and"
"condour, where such other person reposes trust and"
special confidence in the person owing or discharging
the duty. The term ‘fiduciary relationship’ is used to
describe a situation or transaction where one person
(beneficiary) places complete confidence in another
"person (fiduciary) in regard to his affairs, business or"
transaction/s. The term also refers to a person who
holds a thing in trust for another (beneficiary). The
fiduciary is expected to act in confidence and for the
"benefit and advantage of the beneficiary, and use good"
faith and fairness in dealing with the beneficiary or the
things belonging to the beneficiary. If the beneficiary
"has entrusted anything to the fiduciary, to hold the"
thing in trust or to execute certain acts in regard to or
"with reference to the entrusted thing, the fiduciary has"
to act in confidence and expected not to disclose the
thing or information to any third party. There are also
certain relationships where both the parties have to act
in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-‘-vis
another partner and an employer vis-‘-vis employee.
An employee who comes into possession of business or
trade secrets or confidential information relating to the
"employer in the course of his employment, is expected"
to act as a fiduciary and cannot disclose it to others.
"Similarly, if on the request of the employer or official"
"superior or the head of a department, an employee"
54
"furnishes his personal details and information, to be"
"retained in confidence, the employer, the official"
superior or departmental head is expected to hold such
"personal information in confidence as a fiduciary, to be"
made use of or disclosed only if the employee’s conduct
"or acts are found to be prejudicial to the employer."""
"58. In the instant case, the RBI does not place itself in a"
"fiduciary relationship with the Financial institutions (though,"
"in word it puts itself to be in that position) because, the"
"reports of the inspections, statements of the bank, information"
related to the business obtained by the RBI are not under the
pretext of confidence or trust. In this case neither the RBI nor
the Banks act in the interest of each other. By attaching an
"additional ""fiduciary"" label to the statutory duty, the"
Regulatory authorities have intentionally or unintentionally
created an in terrorem effect.
59. RBI is a statutory body set up by the RBI Act as India’s
Central Bank. It is a statutory regulatory authority to oversee
the functioning of the banks and the country’s banking sector.
"Under Section 35A of the Banking Regulation Act, RBI has"
been given powers to issue any direction to the banks in
55
"public interest, in the interest of banking policy and to secure"
proper management of a banking company. It has several
other far-reaching statutory powers.
60. RBI is supposed to uphold public interest and not the
interest of individual banks. RBI is clearly not in any fiduciary
relationship with any bank. RBI has no legal duty to
maximize the benefit of any public sector or private sector
"bank, and thus there is no relationship of ‘trust’ between"
them. RBI has a statutory duty to uphold the interest of the
"public at large, the depositors, the country’s economy and the"
"banking sector. Thus, RBI ought to act with transparency and"
not hide information that might embarrass individual banks.
It is duty bound to comply with the provisions of the RTI Act
and disclose the information sought by the respondents
herein.
61. The baseless and unsubstantiated argument of the RBI
that the disclosure would hurt the economic interest of the
"country is totally misconceived. In the impugned order, the"
CIC has given several reasons to state why the disclosure of
56
the information sought by the respondents would hugely serve
"public interest, and non-disclosure would be significantly"
detrimental to public interest and not in the economic interest
"of India. RBI’s argument that if people, who are sovereign, are"
made aware of the irregularities being committed by the banks
"then the country’s economic security would be endangered, is"
not only absurd but is equally misconceived and baseless.
62. The exemption contained in Section 8(1)(e) applies to
exceptional cases and only with regard to certain pieces of
"information, for which disclosure is unwarranted or"
undesirable. If information is available with a regulatory
"agency not in fiduciary relationship, there is no reason to"
"withhold the disclosure of the same. However, where"
information is required by mandate of law to be provided to an
"authority, it cannot be said that such information is being"
"provided in a fiduciary relationship. As in the instant case,"
the Financial institutions have an obligation to provide all the
information to the RBI and such an information shared under
an obligation/ duty cannot be considered to come under the
57
purview of being shared in fiduciary relationship. One of the
"main characteristic of a Fiduciary relationship is ""Trust and"
"Confidence"". Something that RBI and the Banks lack between"
them.
"63. In the present case, we have to weigh between the public"
interest and fiduciary relationship (which is being shared
"between the RBI and the Banks). Since, RTI Act is enacted to"
"empower the common people, the test to determine limits of"
Section 8 of RTI Act is whether giving information to the
general public would be detrimental to the economic interests
of the country? To what extent the public should be allowed to
get information?
"64. In the context of above questions, it had long since come"
to our attention that the Public Information Officers (PIO)
under the guise of one of the exceptions given under Section 8
"of RTI Act, have evaded the general public from getting their"
hands on the rightful information that they are entitled to.
58
65. And in this case the RBI and the Banks have sidestepped
the General public’s demand to give the requisite information
"on the pretext of ""Fiduciary relationship"" and ""Economic"
"Interest"". This attitude of the RBI will only attract more"
suspicion and disbelief in them. RBI as a regulatory authority
should work to make the Banks accountable to their actions.
"66. Furthermore, the RTI Act under Section 2(f) clearly"
"provides that the inspection reports, documents etc. fall under"
"the purview of ""Information"" which is obtained by the public"
"authority (RBI) from a private body. Section 2(f), reads thus:"
"""information"" means any material in any form,"
"including records, documents, memos, e-mails,"
"opinions, advices, press releases, circulars,"
"orders, logbooks, contracts, reports, papers,"
"samples, models, data material held in any"
electronic form and information relating to any
private body which can be accessed by a public
authority under any other law for the time being
in force;
67. From reading of the above section it can be inferred that
the Legislature’s intent was to make available to the general
public such information which had been obtained by the
public authorities from the private body. Had it been the case
59
where only information related to public authorities was to be
"provided, the Legislature would not have included the word"
"""private body"". As in this case, the RBI is liable to provide"
information regarding inspection report and other documents
to the general public.
68. Even if we were to consider that RBI and the Financial
"Institutions shared a ""Fiduciary Relationship"", Section 2(f)"
would still make the information shared between them to be
accessible by the public. The facts reveal that Banks are trying
"to cover up their underhand actions, they are even more liable"
to be subjected to public scrutiny.
69. We have surmised that many Financial Institutions have
resorted to such acts which are neither clean nor transparent.
The RBI in association with them has been trying to cover up
their acts from public scrutiny. It is the responsibility of the
RBI to take rigid action against those Banks which have been
practicing disreputable business practices.
60
70. From the past we have also come across financial
institutions which have tried to defraud the public. These acts
are neither in the best interests of the Country nor in the
"interests of citizens. To our surprise, the RBI as a Watch Dog"
should have been more dedicated towards disclosing
information to the general public under the Right to
Information Act.
"71. We also understand that the RBI cannot be put in a fix,"
"by making it accountable to every action taken by it. However,"
in the instant case the RBI is accountable and as such it has
to provide information to the information seekers under
"Section 10(1) of the RTI Act, which reads as under:"
"""Section 10(1) Severability --Where a request"
for access to information is rejected on the
ground that it is in relation to information which
"is exempt from disclosure, then,"
"notwithstanding anything contained in this Act,"
access may be provided to that part of the record
which does not contain any information which is
exempt from disclosure under this Act and
which can reasonably be severed from any part
"that contains exempt information."""
72. It was also contended by learned senior counsel for the
RBI that disclosure of information sought for will also go
61
against the economic interest of the nation. The submission
is wholly misconceived.
73. Economic interest of a nation in most common parlance
are the goals which a nation wants to attain to fulfil its
"national objectives. It is the part of our national interest,"
meaning thereby national interest can’t be seen with the
spectacles(glasses) devoid of economic interest.
74. It includes in its ambit a wide range of economic
transactions or economic activities necessary and beneficial to
"attain the goals of a nation, which definitely includes as an"
objective economic empowerment of its citizens. It has been
recognized and understood without any doubt now that one of
the tool to attain this goal is to make information available to
people. Because an informed citizen has the capacity to
reasoned action and also to evaluate the actions of the
"legislature and executives, which is very important in a"
participative democracy and this will serve the nation’s
interest better which as stated above also includes its
62
economic interests. Recognizing the significance of this tool it
has not only been made one of the fundamental rights under
Article 19 of the Constitution but also a Central Act has been
brought into effect on 12th October 2005 as the Right to
"Information Act, 2005."
75. The ideal of ‘Government by the people’ makes it
necessary that people have access to information on matters of
public concern. The free flow of information about affairs of
Government paves way for debate in public policy and fosters
accountability in Government. It creates a condition for ‘open
governance’ which is a foundation of democracy.
76. But neither the Fundamental Rights nor the Right to
Information have been provided in absolute terms. The
fundamental rights guaranteed under Article 19 Clause 1(a)
are restricted under Article 19 clause 2 on the grounds of
"national and societal interest. Similarly Section 8, clause 1 of"
"Right to Information Act, 2005, contains the exemption"
provisions where right to information can be denied to public
"in the name of national security and sovereignty, national"
63
"economic interests, relations with foreign states etc. Thus, not"
all the information that the Government generates will or shall
be given out to the public. It is true that gone are the days of
closed doors policy making and they are not acceptable also
but it is equally true that there are some information which if
"published or released publicly, they might actually cause more"
harm than good to our national interest... if not domestically it
can make the national interests vulnerable internationally and
it is more so possible with the dividing line between national
and international boundaries getting blurred in this age of
rapid advancement of science and technology and global
economy. It has to be understood that rights can be enjoyed
without any inhibition only when they are nurtured within
protective boundaries. Any excessive use of these rights which
may lead to tampering these boundaries will not further the
national interest. And when it comes to national economic
"interest, disclosure of information about currency or exchange"
"rates, interest rates, taxes, the regulation or supervision of"
"banking, insurance and other financial institutions, proposals"
64
for expenditure or borrowing and foreign investment could in
"some cases harm the national economy, particularly if"
"released prematurely. However, lower level economic and"
"financial information, like contracts and departmental budgets"
should not be withheld under this exemption. This makes it
necessary to think when or at what stage an information is to
"be provided i.e., the appropriate time of providing the"
information which will depend on nature of information sought
for and the consequences it will lead to after coming in public
domain.
"77. In one of the case, the respondent S.S. Vohra sought"
certain information in relation to the Patna Branch of ICICI
Bank and advisory issued to the Hong Kong Branch of ICICI
Bank. The contention of the respondent was that the Finance
Minister had made a written statement on the floor of the
"House on 24.07.2009 that some banks like SBI, ICICI, Bank of"
"Baroda, Dena Bank etc., were violating FEMA Guidelines for"
opening of accounts and categorically mentioned that the
Patna Branch of ICICI Bank Ltd. had opened some fictitious
65
accounts which were opened by fraudsters and hence an
advisory note was issued to the concerned branch on
December 2007 for its irregularities. The Finance Minister
even mentioned that in the year 2008 the ICICI Bank Ltd. was
also warned for alleged irregular dealings in securities in Hong
"Kong. Hence, the respondent sought such advisory note as"
issued by the RBI to ICICI Bank. The Central Information
Commissioner in the impugned order considered the RBI
Master Circular dated 01.07.2009 to all the commercial banks
giving various directions and finally held as under :-
"""It has been contended by the Counsel on behalf of"
the ICICI Bank Limited that an advisory note is prepared
"after reliance on documents such as Inspection Reports,"
"Scrutiny reports etc. and hence, will contain the contents of"
those documents too which are otherwise exempt from
disclosure. We have already expressed our view in express
terms that whether or not an Advisory Note shall be
disclosed under the RTI Act will have to be determined on
"case by case basis. In some other case, for example, there"
may be a situation where some contents of the Advisory
Note may have to be severed to such an extent that details
of Inspection Reports etc. can be separated from the Note
and then be provided to the RTI Applicant. Section 10 of
the RTI Act leaves it open to decide each case on its merits
after having satisfied ourselves whether an Advisory Note
needs to be provided as it is or whether some of its contents
may be severed since they may be exempted per se under
"the RTI Act. However, we find no reason, whatsoever, to"
apply Section 10 of the RTI Act in order to severe the
contents of the Advisory Note issued by the RBI to the ICICI
Bank Limited as the matter has already been placed on the
floor of the Lok Sabha by the Hon’ble Finance Minister.
66
This is a matter of concern since it involves the
violation of policy Guidelines initiated by the RBI and
affects the public at large. Transparency cannot be brought
overnight in any system and one can hope to witness
accountability in a system only when its end users are
"well-educated, well-informed and well-aware. If the"
customers of commercial banks will remain oblivious to the
violations of RBI Guidelines and standards which such
"banks regularly commit, then eventually the whole financial"
system of the country would be at a monumental loss. This
can only be prevented by suo motu disclosure of such
information as the penalty orders are already in public
"domain."""
"78. Similarly, in another case the respondent Jayantilal N."
"Mistry sought information from the CPIO, RBI in respect of a"
Cooperative Bank viz. Saraspur Nagrik Sahkari Bank Limited
"related to inspection report, which was denied by the CPIO on"
the ground that the information contained therein were
received by RBI in a fiduciary capacity and are exempt under
Section 8(1)(e) of RTI Act. The CIC directed the petitioner to
furnish that information since the RBI expressed their
willingness to disclose a summary of substantive part of the
inspection report to the respondent. While disposing of the
appeal the CIC observed:-
"""Before parting with this appeal, we would like to"
record our observations that in a rapidly unfolding
"economics scenario, there are public institutions, both"
"in the banking and non-banking sector, whose"
activities have not served public interest. On the
67
"contrary, some such institutions may have attempted"
to defraud the public of their moneys kept with such
institutions in trust. RBI being the Central Bank is
one of the instrumentalities available to the public
which as a regulator can inspect such institutions and
initiate remedial measures where necessary. It is
"important that the general public, particularly, the"
share holders and the depositors of such institutions
are kept aware of RBI’s appraisal of the functioning of
such institutions and taken into confidence about the
remedial actions initiated in specific cases. This will
serve the public interest. The RBI would therefore be
well advised to be proactive in disclosing information
to the public in general and the information seekers
"under the RTI Act, in particular. The provisions of"
Section 10(1) of the RTI Act can therefore be
judiciously used when necessary to adhere to this
"objective."""
"79. In another case, where the respondent P.P. Kapoor"
sought information inter alia about the details of default in
"loans taken from public sector banks by industrialists, out of"
"the list of defaulters, top 100 defaulters, names of the"
"businessmen, firm name, principal amount, interest amount,"
date of default and date of availing the loan etc. The said
information was denied by the CPIO mainly on the basis that
it was held in fiduciary capacity and was exempt from
"disclosure of such information. Allowing the appeal, the CIC"
directed for the disclosure of such information. The CIC in the
impugned order has rightly observed as under:-
68
"""I wish government and its instrumentalities"
would remember that all information held by
"them is owned by citizens, who are sovereign."
"Further, it is often seen that banks and financial"
institutions continue to provide loans to
industrialists despite their default in repayment
"of an earlier loan."" This Court in UP Financial"
"Corporation vs. Gem Cap India Pvt. Ltd., AIR"
1993 SC 1435 has noted that :
"""Promoting industrialization at the cost of"
public funds does not serve the public
"interest, it merely amounts to transferring"
public money to private account’. Such
practices have led citizens to believe that
defaulters can get away and play fraud on
public funds. There is no doubt that
information regarding top industrialists
who have defaulted in repayment of loans
must be brought to citizens’ knowledge;
there is certainly a larger public interest
that could be served on ....disclosure of
"the same. In fact, information about"
industrialists who are loan defaulters of
the country may put pressure on such
persons to pay their dues. This would
have the impact of alerting Citizens about
those who are defaulting in payments and
could also have some impact in shaming
them.
RBI had by its Circular DBOD No.
"BC/CIS/47/20.16.002/94 dated April 23, 1994"
directed all banks to send a report on their
"defaulters, which it would share with all banks"
"and financial institutions, with the following"
objectives:
1) To alert banks and financial institutions (FIs)
and to put them on guard against borrowers
who have defaulted in their dues to lending
institutions;
2) To make public the names of the borrowers
who have defaulted and against whom suits
"have been filed by banks/ FIs."""
69
"80. At this juncture, we may refer the decision of this Court"
"in Mardia Chemicals Limited vs. Union of India, (2004) 4"
"SCC 311, wherein this court while considering the validity of"
SARFAESI Act and recovery of non-performing assets by
"banks and financial institutions in India, held :-"
""".............it may be observed that though the"
transaction may have a character of a private
contract yet the question of great importance behind
such transactions as a whole having far reaching
effect on the economy of the country cannot be
"ignored, purely restricting it to individual"
transactions more particularly when financing is
through banks and financial institutions utilizing the
"money of the people in general namely, the"
depositors in the banks and public money at the
"disposal of the financial institutions. Therefore,"
wherever public interest to such a large extent is
involved and it may become necessary to achieve an
"object which serves the public purposes, individual"
rights may have to give way. Public interest has
always been considered to be above the private
"interest. Interest of an individual may, to some"
"extent, be affected but it cannot have the potential of"
taking over the public interest having an impact in
"the socio- economic drive of the country..........."""
81. In rest of the cases the CIC has considered elaborately
the information sought for and passed orders which in our
"opinion do not suffer from any error of law, irrationality or"
arbitrariness.
70
"82. We have, therefore, given our anxious consideration to"
the matter and came to the conclusion that the Central
Information Commissioner has passed the impugned orders
"giving valid reasons and the said orders, therefore, need no"
interference by this Court.
83. There is no merit in all these cases and hence they are
dismissed.
..................................J.
(M.Y. Eqbal)
..................................J.
(C. Nagappan )
New Delhi
"December 16, 2015"
71
ITEM NO.1A COURT NO.9 SECTION XVIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Transfer Case (Civil) No.91/2015 @ T.P.(C) No.707/2012
RESERVE BANK OF INDIA Petitioner(s)
VERSUS
JAYANTILAL N. MISTRY Respondent(s)
WITH T.C.(C) No.92/2015 @ T.P.(C) No.708/2012
T.C.(C) No. 93/2015 @ T.P.(C) No.711/2012
T.C.(C) No. 94/2015 @ T.P.(C) No.712/2012
T.C.(C) No. 95/2015 @ T.P.(C) No.713/2012
T.C.(C) No. 96/2015 @ T.P.(C) No.715/2012
T.C.(C) No. 97/2015 @ T.P.(C) No.716/2012
T.C.(C) No. 98/2015 @ T.P.(C) No.717/2012
T.C.(C) No. 99/2015 @ T.P.(C) No.718/2012
T.C.(C) No. 100/2015 @ T.P.(C) No.709/2012
T.C.(C) No. 101/2015 @ T.P.(C) No.714/2012
Date : 16/12/2015 These Cases were called on for
pronouncement of Judgment today.
"For Petitioner(s) Mr. T. R. Andhyarujina, Sr. Adv."
"Mr. Kuldeep S. Parihar, Adv."
"Mr. H. S. Parihar,Adv."
"Mr. Soumik Gitosal, Adv."
"Mr. Siddharth Sijoria, Adv."
"Mr. P. Narasimhan,Adv."
"Mr. Bharat Sangal,Adv."
"For Respondent(s) Dr. Lalit Bhasin, Adv."
"Ms. Nina Gupta, Adv."
"Mr. Mudit Sharma,Adv."
72
"Mr. Prashant Bhushan,Adv."
"Mr. H. S. Parihar,Adv."
"Ms. Jyoti Mendiratta,Adv."
"Mr. K.R. Anand, Adv."
"Mr. Vivek Gupta,Adv."
"Ms. Manisha T. Karia,Adv."
"Ms. Srishti Rani, Adv."
"Mr. Rakesh K. Sharma,Adv."
"Mr. Amol B. Karande, Adv."
Hon’ble Mr. Justice M. Y. Eqbal pronounced the
reportable Judgment of the Bench comprising of His Lordship
and Hon’ble Mr. Justice C. Nagappan.
These transferred Cases are dismissed in terms of the
signed reportable judgment.
(Sanjay Kumar-II) (Indu Pokhriyal)
Court Master Court Master
(Signed Order is placed on the file)
73
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7571 OF 2011
[Arising out of SLP (C) No.2040/2011]
The Institute of Chartered Accountants of India … Appellant
Vs.
Shaunak H.Satya & Ors. … Respondents
J U D G M E N T
"R.V.RAVEENDRAN,J."
Leave granted.
2. The appellant Institute of Chartered Accountants of India (for short
‘ICAI’) is a body corporate established under section 3 of the Chartered
"Accountants Act, 1949. One of the functions of the appellant council is to"
conduct the examination of candidates for enrolment as Chartered
Accountants. The first respondent appeared in the Chartered Accountants’
"final examination conducted by ICAI in November, 2007. The results were"
declared in January 2008. The first respondent who was not successful in the
examination applied for verification of marks. The appellant carried out the
verification in accordance with the provisions of the Chartered Accountants
2
"Regulations, 1988 and found that there was no discrepancy in evaluation of"
answerscripts. The appellant informed the first respondent accordingly.
3. On 18.1.2008 the appellant submitted an application seeking the
"following information under 13 heads, under the Right to Information Act,"
2005 (‘RTI Act’ for short) :
“1) Educational qualification of the examiners & Moderators with subject
wise classifications. (you may not give me the names of the examiners &
moderators).
2) Procedure established for evaluation of exam papers.
"3) Instructions issued to the examiners, and moderators oral as well as"
written if any.
4) Procedure established for selection of examiners & moderators.
5) Model answers if any given to the examiners & moderators if any.
6) Remuneration paid to the examiners & moderators.
7) Number of students appearing for exams at all levels in the last 2 years
(i.e. PE1/PE2/PCC/CPE/Final with break up)
8) Number of students that passed at the 1st attempt from the above.
9) From the number of students that failed in the last 2 years (i.e.
"PE1/PE2/PCC/CPE/Final with break up) from the above, how many"
students opted for verification of marks as per regulation 38.
10) Procedure adopted at the time of verification of marks as above.
11) Number of students whose marks were positively changed out of those
students that opted for verification of marks.
12) Educational qualifications of the persons performing the verification
of marks under Regulation 38 & remuneration paid to them.
13) Number of times that the council has revised the marks of any
"candidate, or any class of candidates, in accordance with regulation"
3
"39(2) of the Chartered Accountants Regulations, 1988, the criteria"
"used for such discretion, the quantum of such revision, the quantum"
"of such revision, the authority that decides such discretion, and the"
number of students along with the quantum of revision affected by
"such revision in the last 5 exams, held at all levels (i.e."
PE1/PE2/PCC/CPE/Final with break up).”
(emphasis supplied)
4. The appellant by its reply dated 22.2.2008 gave the following
responses/information in response to the 13 queries :
"“1. Professionals, academicians and officials with relevant academic and"
practical experience and exposure in relevant and related fields.
2&3. Evaluation of answer books is carried out in terms of the
guidance including instructions provided by Head Examiners
"appointed for each subject(s). Subsequently, a review thereof is"
undertaken for the purpose of moderators.
"4. In terms of (1) above, a list of examiners is maintained under"
"Regulation 42 of the Chartered Accountants Regulations, 1988. Based on"
"the performance of the examiners, moderators are appointed from amongst"
the examiners.
5. Solutions are given in confidence of examiners for the purpose of
evaluation. Services of moderators are utilized in our context for
paper setting.
"6. Rs.50/- per answer book is paid to the examiner while Rs.10,000/- is"
paid to the moderator for each paper.
7. The number of students who appeared in the last two years is as follow:
Month & Number of students Appeared
Year
PE-I PE-II PCC CPE* FINAL
"Nov.,2005 16228 47522 Not held Not held 28367"
"May,2006 32215 49505 Not held Not held 26254"
"Nov.,2006 16089 49220 Not held 27629 24704"
"May,2007 6194 56624 51 42910 23490"
*CPE is read as Common Proficiency Test (CPT).
4
"8. Since such a data is not compiled, it is regretted that the number of"
students who passed Final Examination at the 1st attempt cannot be made
available.
9. The number of students who applied for the verification of answer
books is as follows:-
Month & Number of students who applied for verification from
Year among the failed candidates*
PE-I PE-II PCC CPE FINAL
"Nov.,2005 598 4150 Not held Not held 4432"
"May,2006 1607 4581 Not held Not held 4070"
"Nov.,2006 576 4894 Not held 205 3352"
"May,2007 204 5813 07 431 3310"
* This figure may contain some pass candidates also.
10. Each request for verification is processed in accordance with
"Regulation 39(4) of the Chartered Accountants Regulation, 1988"
through well laid down scientific and meticulous procedure and a
comprehensive checking is done before arriving at any conclusion.
The process of verification starts after declaration of result and each
request is processed on first come first served basis. The verification of
"the answer books, as requested, is done by two independent persons"
"separately and then, reviewed by an Officer of the Institute and upon"
"his satisfaction, the letter informing the outcome of the verification"
exercise is issued after the comprehensive check has been
satisfactorily completed.
11. The number of students who were declared passed consequent to
the verification of answer books is as given below:-
Month & Number of students who applied for verification from
Year among the failed candidates*
PE-I PE-II PCC CPE FINAL
"Nov.,2005 14 40 Not held Not held 37"
"May,2006 24 86 Not held Not held 30"
"Nov.,2006 07 61 Not held 02 35"
"May,2007 03 56 Nil Nil 27"
* This figure may contain some pass candidates also.
12. Independent persons such as retired Govt. teachers/Officers are
assigned the task of verification of answer books work. A token
5
honorarium of Rs.6/- per candidate besides lump sum daily conveyance
allowance is paid.
13.The Examination Committee in terms of Regulation 39(2) has the
authority to revise the marks based on the findings of the Head
Examiners and incidental information in the knowledge of the
"Examination Committee, in its best wisdom. Since the details"
sought are highly confidential in nature and there is no larger
"public interest warrants disclosure, the same is denied under"
"Section 8(1)(e) of the Right to Information Act, 2005.”"
(emphasis supplied)
"5. Not being satisfied with the same, the respondent filed an appeal"
"before the appellate authority. The appellate authority dismissed the appeal,"
"by order dated 10.4.2008, concurring with the order of the Chief Public"
Information Officer of the appellant. The first respondent thereafter filed a
second appeal before the Central Information Commission (for short ‘CIC’)
in regard to queries (1) to (5) and (7) to (13). CIC by order dated 23.12.2008
"rejected the appeal in regard to queries 3, 5 and 13 (as also Query 2) while"
directing the disclosure of information in regard to the other questions. We
extract below the reasoning given by the CIC to refuse disclosure in regard
"to queries 3,5 and 13."
“Re: Query No.3.
Decision:
This request of the Appellant cannot be without seriously and perhaps
irretrievably compromising the entire examination process. An instruction
"issued by a public authority – in this case, examination conducting"
authority – to its examiners is strictly confidential. There is an implied
contract between the examiners and the examination conducting public
6
authority. It would be inappropriate to disclose this information. This item
"of information too, like the previous one, attracts section 8(1)(d) being the"
intellectual property of the public authority having being developed
through careful empirical and intellectual study and analysis over the
"years. I, therefore, hold that this item of query attracts exemption under"
section 8(1)(e) as well as section 8(1)(d) of the RTI Act.
Re : Query No.5.
Decision:
Respondents have explained that what they provide to the examiners is
“solutions” and not “model answers” as assumed by the appellant. For the
"aid of the students and examinees, “suggested answers” to the questions in"
an exam are brought out and sold in the market.
It would be wholly inappropriate to provide to the students the solutions
given to the questions only for the exclusive use of the examiners and
moderators. Given the confidentiality of interaction between the public
"authority holding the examinations and the examiners, the “solutions”"
qualifies to be items barred by section 8(1)(e) of the RTI Act. This item of
information also attracts section 8(1)(d) being the exclusive intellectual
property of the public authority. Respondents have rightly advised the
appellant to secure the “suggested answers” to the questions from the open
"market, where these are available for sale."
Re : Query No.13.
Decision:
I find no infirmity in the reply furnished to the appellant. It is a categorical
statement and must be accepted as such. Appellant seems to have certain
presumptions and assumptions about what these replies should be.
Respondents are not obliged to cater to that. It is therefore held that there
shall be no further disclosure of information as regards this item of
query.”
6. Feeling aggrieved by the rejection of information sought under items
"3, 5 and 13, the first respondent approached the Bombay High Court by"
filing a writ petition. The High Court allowed the said petition by order
7
dated 30.11.2010 and directed the appellant to supply the information in
"regard to queries 3, 5 and 13, on the following reasoning :"
“According to the Central Information Commission the solutions which
have been supplied by the Board to the examiners are given in confidence
"and therefore, they are entitled to protection under Section 8(1)(e) of the"
RTI Act. Section 8(1)(e) does not protect confidential information and the
claim of intellectual property has not made by the respondent No.2
anywhere. In the reply it is suggested that the suggested answers are
"published and sold in open market by the Board. Therefore, there can be"
no confidentiality about suggested answers. It is no where explained what
is the difference between the suggested answers and the solutions. In our
"opinion, the orders of both Authorities in this respect also suffer from non-"
application of mind and therefore they are liable to be set aside. We find
that the right given under the Right to Information Act has been dealt with
by the Authorities under that Act in most casual manner without properly
"applying their minds to the material on record. In our opinion, therefore,"
"information sought against queries Nos.3,5 and 13 could not have been"
denied by the Authorities to the petitioner. The principal defence of the
respondent No.2 is that the information is confidential. Till the result of
"the examination is declared, the information sought by the petitioner has to"
"be treated as confidential, but once the result is declared, in our opinion,"
that information cannot be treated as confidential. We were not shown
anything which would even indicate that it is necessary to keep the
information in relation to the examination which is over and the result is
also declared as confidential.”
7. The said order of the High Court is challenged in this appeal by
special leave. The appellant submitted that it conducts the following
examinations: (i) the common proficiency test; (ii) professional education
examination-II (till May 2010); (iii) professional competence examination;
(iv) integrated professional competence examination; (v) final examination;
and (vi) post qualification course examinations. A person is enrolled as a
"Chartered Accountant only after passing the common proficiency test,"
8
professional educational examination-II/professional competence
examination and final examination. The number of candidates who applied
"for various examinations conducted by ICAI were 2.03 lakhs in 2006, 4.16"
lakhs in 2007; 3.97 lakh candidates in 2008 and 4.20 lakhs candidates in
2009. ICAI conducts the examinations in about 343 centres spread over 147
cities throughout the country and abroad. The appellant claims to follow the
following elaborate system with established procedures in connection with
"its examinations, taking utmost care with regard to valuation of answer"
sheets and preparation of results and also in carrying out verification in case
a student applies for the same in accordance with the following Regulations:
“Chartered Accountants with a standing of minimum of 5-7 years in the
profession or teachers with a minimum experience of 5-7 years in
university education system are empanelled as examiners of the Institute.
The eligibility criteria to be empanelled as examiner for the examinations
"held in November, 2010 was that a chartered accountant with a minimum"
"of 3 years’ standing, if in practice, or with a minimum of 10 yeas standing,"
if in service and University lecturers with a minimum of 5 years’ teaching
experience at graduate/post graduate level in the relevant subjects with
examiner ship experience of 5 years. The said criteria is continued to be
followed. The bio-data of such persons who wish to be empanelled are
scrutinized by the Director of Studies of the Institute in the first instance.
"Thereafter, Examination Committee considers each such application and"
"takes a decision thereon. The examiners, based on their performance and"
"experience with the system of the ICAI, are invited to take up other"
"assignments of preparation of question paper, suggested solution, marking"
"scheme, etc. and also appointed as Head Examiners to supervise the"
evaluation carried out by the different examiners in a particular subject
from time to time.
A question paper and its solution are finalized by different experts in the
"concerned subject at 3 stages. In addition, the solution is also vetted by"
Director of Studies of the Institute after the examination is held and before
the evaluation of the answer sheets are carried out by examiners. All
9
possible alternate solutions to a particular question as intimated by
different examiners in a subject are also included in the solution. Each
examiner in a particular subject is issued detailed instructions on marking
scheme by the Head Examiners and general guidelines for evaluation
"issued by the ICAI. In addition, performance of each examiner, to"
ascertain whether the said examiner has complied with the instructions
"issued as also the general guidelines of the Institute, is assessed by the"
Head Examiner at two stages before the declaration of result. The said
process has been evolved based on the experience gained in the last 60
years of conducting examinations and to ensure all possible uniformity in
evaluation of answer sheets carried out by numerous examiners in a
particular subject and to provide justice to the candidates.
The examination process/procedure/systems of the ICAI are well in place
and have been evolved over several decades out of experience gained. The
said process/procedure/systems have adequate checks to ensure fair results
and also ensure that due justice is done to each candidate and no candidate
ever suffers on any count.”
8. The appellant contends that the information sought as per queries (3)
"and (5) - that is, instructions and model answers, if any, issued to the"
examiners and moderators by ICAI cannot be disclosed as they are exempted
from disclosure under clauses (d) and (e) of sub-section (1) of Section 8 of
RTI Act. It is submitted that the request for information is also liable to be
rejected under section 9 of the Act. They also contended that in regard to
"query No.(13), whatever information available had been furnished, apart"
from generally invoking section 8(1)(e) to claim exemption.
"9. On the said contentions, the following questions arise for our"
consideration:
10
(i) Whether the instructions and solutions to questions (if any) given by
"ICAI to examiners and moderators, are intellectual property of the ICAI,"
disclosure of which would harm the competitive position of third parties and
therefore exempted under section 8(1)(d) of the RTI Act?
(ii) Whether providing access to the information sought (that is
instructions and solutions to questions issued by ICAI to examiners and
moderators) would involve an infringement of the copyright and therefore
the request for information is liable to be rejected under section 9 of the RTI
Act?
(iii) Whether the instructions and solutions to questions are information
made available to examiners and moderators in their fiduciary capacity and
therefore exempted under section 8(1)(e) of the RTI Act?
(iv) Whether the High Court was justified in directing the appellant to
furnish to the first respondent five items of information sought (in query
"No.13) relating to Regulation 39(2) of Chartered Accountants Regulations,"
1988?
Re: Question (i)
10. The term ‘intellectual property’ refers to a category of intangible
rights protecting commercially valuable products of human intellect
"comprising primarily trade mark, copyright and patent right, as also trade"
"secret rights, publicity rights, moral rights and rights against unfair"
11
"competition (vide Black’s Law Dictionary, 7th Edition, page 813). Question"
"papers, instructions regarding evaluation and solutions to questions (or"
model answers) which are furnished to examiners and moderators in
"connection with evaluation of answer scripts, are literary works which are"
products of human intellect and therefore subject to a copyright. The paper
"setters and authors thereof (other than employees of ICAI), who are the first"
owners thereof are required to assign their copyright in regard to the
question papers/solutions in favour of ICAI. We extract below the relevant
standard communication sent by ICAI in that behalf:
“The Council is anxious to prevent the unauthorized circulation of
Question Papers set for the Chartered Accountants Examinations as well
"as the solutions thereto. With that object in view, the Council proposes to"
reserve all copy-rights in the question papers as well as solutions. In order
"to enable the Council to retain the copy-rights, it has been suggested that it"
would be advisable to obtain a specific assignment of any copy-rights or
rights of publication that you may be deemed to possess in the questions
set by you for the Chartered Accountants Examinations and the solutions
thereto in favour of the Council. I have no doubt that you will appreciate
that this is merely a formality to obviate any misconception likely to arise
later on.”
"In response to it, the paper setters/authors give declarations of assignment,"
assigning their copyrights in the question papers and solutions prepared by
"them, in favour of ICAI. Insofar as instructions prepared by the employees"
"of ICAI, the copyright vests in ICAI. Consequently, the question papers,"
solutions to questions and instructions are the intellectual properties of ICAI.
12
"The appellant contended that if the question papers, instructions or solutions"
"to questions/model answers are disclosed before the examination is held, it"
would harm the competitive position of all other candidates who participate
in the examination and therefore the exemption under section 8(1)(d) is
squarely attracted.
11. The first respondent does not dispute that the appellant is entitled to
"claim a copyright in regard to the question papers, solutions/model answers,"
instructions relating to evaluation and therefore the said material constitute
intellectual property of the appellant. But he contends that the exemption
under section 8(1)(d) will not be available if the information is merely an
intellectual property. The exemption under section 8(1)(d) is available only
"in regard to such intellectual property, the disclosure of which would harm"
the competitive position of any third party. It was submitted that the
appellant has not been able to demonstrate that the disclosure of the said
intellectual property (instructions and solutions/model answers) would harm
the competitive position of any third party.
12. Information can be sought under the RTI Act at different stages or
different points of time. What is exempted from disclosure at one point of
"time may cease to be exempted at a later point of time, depending upon the"
13
"nature of exemption. For example, any information which is exempted from"
"disclosure under section 8, is liable to be disclosed if the application is made"
in regard to the occurrence or event which took place or occurred or
"happened twenty years prior to the date of the request, vide section 8(3) of"
"the RTI Act. In other words, information which was exempted from"
"disclosure, if an application is made within twenty years of the occurrence,"
"may not be exempted if the application is made after twenty years. Similarly,"
"if information relating to the intellectual property, that is the question"
"papers, solutions/model answers and instructions, in regard to any particular"
examination conducted by the appellant cannot be disclosed before the
"examination is held, as it would harm the competitive position of"
innumerable third parties who are taking the said examination. Therefore it
is obvious that the appellant examining body is not liable to give to any
"citizen any information relating to question papers, solutions/model"
answers and instructions relating to a particular examination before the date
of such examination. But the position will be different once the examination
"is held. Disclosure of the question papers, model answers and instructions in"
"regard to any particular examination, would not harm the competitive"
position of any third party once the examination is held. In fact the question
papers are disclosed to everyone at the time of examination. The appellant
14
voluntarily publishes the “suggested answers” in regard to the question
"papers in the form of a book for sale every year, after the examination."
Therefore section 8(1)(d) of the RTI Act does not bar or prohibit the
"disclosure of question papers, model answers (solutions to questions) and"
instructions if any given to the examiners and moderators after the
"examination and after the evaluation of answerscripts is completed, as at that"
stage they will not harm the competitive position of any third party. We
therefore reject the contention of the appellant that if an information is
"exempt at any given point of time, it continues to be exempt for all time to"
come.
Re : Question (ii)
13. Section 9 of the RTI Act provides that a Central or State Public
Information Officer may reject a request for information where providing
access to such information would involve an infringement of copyright
subsisting in a person other than the State. The word ‘State’ used in section
"9 of RTI Act refers to the Central or State Government, Parliament or"
"Legislature of a State, or any local or other authorities as described under"
Article 12 of the Constitution. The reason for using the word ‘State’ and not
‘public authority’ in section 9 of RTI Act is apparently because the
15
definition of ‘public authority’ in the Act is wider than the definition of
"‘State’ in Article 12, and includes even non-government organizations"
financed directly or indirectly by funds provided by the appropriate
government. Be that as it may. An application for information would be
"rejected under section 9 of RTI Act, only if information sought involves an"
infringement of copyright subsisting in a person other than the State. ICAI
"being a statutory body created by the Chartered Accountants Act, 1948 is"
‘State’. The information sought is a material in which ICAI claims a
copyright. It is not the case of ICAI that anyone else has a copyright in such
"material. In fact it has specifically pleaded that even if the question papers,"
"solutions/model answers, or other instructions are prepared by any third"
"party for ICAI, the copyright therein is assigned in favour of ICAI."
"Providing access to information in respect of which ICAI holds a copyright,"
does not involve infringement of a copyright subsisting in a person other
than the State. Therefore ICAI is not entitled to claim protection against
disclosure under section 9 of the RTI Act.
14. There is yet another reason why section 9 of RTI Act will be
inapplicable. The words ‘infringement of copyright’ have a specific
"connotation. Section 51 of the Copyright Act, 1957 provides when a"
16
copyright in a work shall be deemed to be infringed. Section 52 of the Act
enumerates the acts which are not infringement of a copyright. A combined
reading of sections 51 and 52(1)(a) of Copyright Act shows that furnishing
"of information by an examining body, in response to a query under the RTI"
Act may not be termed as an infringement of copyright. Be that as it may.
Re : Question (iii)
15. We will now consider the third contention of ICAI that the
information sought being an information available to a person in his
"fiduciary relationship, is exempted under section 8(1)(e) of the RTI Act."
This Court in Central Board of Secondary Education & Anr. v. Aditya
Bandopadhyay & Ors. [2011 (8) SCALE 645] considered the meaning of the
words information available to a person in his fiduciary capacity and
observed thus:
“But the words ‘information available to a person in his fiduciary
relationship’ are used in section 8(1)(e) of RTI Act in its normal and well
"recognized sense, that is to refer to persons who act in a fiduciary"
"capacity, with reference to a specific beneficiary or beneficiaries who are"
to be expected to be protected or benefited by the actions of the fiduciary –
"a trustee with reference to the beneficiary of the trust, a guardian with"
"reference to a minor/physically/infirm/mentally challenged, a parent with"
"reference to a child, a lawyer or a chartered accountant with reference to a"
"client, a doctor or nurse with reference to a patient, an agent with"
"reference to a principal, a partner with reference to another partner, a"
"director of a company with reference to a share-holder, an executor with"
"reference to a legatee, a receiver with reference to the parties to a lis, an"
employer with reference to the confidential information relating to the
17
"employee, and an employee with reference to business"
dealings/transaction of the employer.”
16. The instructions and ‘solutions to questions’ issued to the examiners
"and moderators in connection with evaluation of answer scripts, as noticed"
"above, is the intellectual property of ICAI. These are made available by"
ICAI to the examiners and moderators to enable them to evaluate the answer
"scripts correctly and effectively, in a proper manner, to achieve uniformity"
"and consistency in evaluation, as a large number of evaluators and"
moderators are engaged by ICAI in connection with the evaluation. The
instructions and solutions to questions are given by the ICAI to the
examiners and moderators to be held in confidence. The examiners and
moderators are required to maintain absolute secrecy and cannot disclose the
"answer scripts, the evaluation of answer scripts, the instructions of ICAI and"
"the solutions to questions made available by ICAI, to anyone. The examiners"
and moderators are in the position of agents and ICAI is in the position of
principal in regard to such information which ICAI gives to the examiners
"and moderators to achieve uniformity, consistency and exactness of"
evaluation of the answer scripts. When anything is given and taken in trust
"or in confidence, requiring or expecting secrecy and confidentiality to be"
18
"maintained in that behalf, it is held by the recipient in a fiduciary"
relationship.
17. It should be noted that section 8(1)(e) uses the words “information
available to a person in his fiduciary relationship. Significantly section
8(1)(e) does not use the words “information available to a public authority
in its fiduciary relationship”. The use of the words “person” shows that the
holder of the information in a fiduciary relationship need not only be a
‘public authority’ as the word ‘person’ is of much wider import than the
word ‘public authority’. Therefore the exemption under section 8(1)(e) is
available not only in regard to information that is held by a public authority
"(in this case the examining body) in a fiduciary capacity, but also to any"
information that is given or made available by a public authority to anyone
"else for being held in a fiduciary relationship. In other words, anything given"
and taken in confidence expecting confidentiality to be maintained will be
information available to a person in fiduciary relationship. As a
"consequence, it has to be held that the instructions and solutions to questions"
"communicated by the examining body to the examiners, head-examiners and"
"moderators, are information available to such persons in their fiduciary"
relationship and therefore exempted from disclosure under section 8(1)(d) of
RTI Act.
19
"18. The information to which RTI Act applies falls into two categories,"
"namely, (i) information which promotes transparency and accountability in"
"the working of every public authority, disclosure of which helps in"
"containing or discouraging corruption, enumerated in clauses (b) and (c) of"
section 4(1) of RTI Act; and (ii) other information held by public authorities
not falling under section 4(1)(b) and (c) of RTI Act. In regard to information
"falling under the first category, the public authorities owe a duty to"
disseminate the information widely suo moto to the public so as to make it
easily accessible to the public. In regard to information enumerated or
"required to be enumerated under section 4(1)(b) and (c) of RTI Act,"
"necessarily and naturally, the competent authorities under the RTI Act, will"
have to act in a pro-active manner so as to ensure accountability and ensure
that the fight against corruption goes on relentlessly. But in regard to other
"information which do not fall under Section 4(1)(b) and (c) of the Act, there"
is a need to proceed with circumspection as it is necessary to find out
whether they are exempted from disclosure. One of the objects of democracy
is to bring about transparency of information to contain corruption and bring
about accountability. But achieving this object does not mean that other
equally important public interests including efficient functioning of the
"governments and public authorities, optimum use of limited fiscal resources,"
20
"preservation of confidentiality of sensitive information, etc. are to be ignored"
or sacrificed. The object of RTI Act is to harmonize the conflicting public
"interests, that is, ensuring transparency to bring in accountability and"
"containing corruption on the one hand, and at the same time ensure that the"
"revelation of information, in actual practice, does not harm or adversely"
affect other public interests which include efficient functioning of the
"governments, optimum use of limited fiscal resources and preservation of"
"confidentiality of sensitive information, on the other hand. While sections 3"
"and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to"
achieve the second objective. Therefore when section 8 exempts certain
"information from being disclosed, it should not be considered to be a fetter"
"on the right to information, but as an equally important provision protecting"
other public interests essential for the fulfilment and preservation of
democratic ideals. Therefore in dealing with information not falling under
"section 4(1)(b) and (c), the competent authorities under the RTI Act will not"
read the exemptions in section 8 in a restrictive manner but in a practical
manner so that the other public interests are preserved and the RTI Act
attains a fine balance between its goal of attaining transparency of
information and safeguarding the other public interests.
21
19. Among the ten categories of information which are exempted from
"disclosure under section 8 of RTI Act, six categories which are described in"
"clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information"
"enumerated in clauses (d), (e) and (j) on the other hand get only conditional"
"exemption, that is the exemption is subject to the overriding power of the"
"competent authority under the RTI Act in larger public interest, to direct"
disclosure of such information. The information referred to in clause (i)
"relates to an exemption for a specific period, with an obligation to make the"
said information public after such period. The information relating to
intellectual property and the information available to persons in their
"fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not"
"enjoy absolute exemption. Though exempted, if the competent authority"
under the Act is satisfied that larger public interest warrants disclosure of
"such information, such information will have to be disclosed. It is needless"
to say that the competent authority will have to record reasons for holding
that an exempted information should be disclosed in larger public interest.
20. In this case the Chief Information Commissioner rightly held that the
information sought under queries (3) and (5) were exempted under section
8(1)(e) and that there was no larger public interest requiring denial of the
statutory exemption regarding such information. The High Court fell into an
22
error in holding that the information sought under queries (3) and (5) was
not exempted.
Re : Question (iv)
21. Query (13) of the first respondent required the appellant to disclose
the following information: (i) The number of times ICAI had revised the
marks of any candidate or any class of candidates under Regulation 39(2);
(ii) the criteria used for exercising such discretion for revising the marks;
(iii) the quantum of such revisions; (iv) the authority who decides the
exercise of discretion to make such revision; and (v) the number of students
(with particulars of quantum of revision) affected by such revision held in
the last five examinations at all levels.
"22. Regulation 39(2) of the Chartered Accountants Regulations, 1988"
"provides that the council may in its discretion, revise the marks obtained by"
all candidates or a section of candidates in a particular paper or papers or in
"the aggregate, in such manner as may be necessary for maintaining its"
standards of pass percentage provided in the Regulations. Regulation 39(2)
"thus provides for what is known as ‘moderation’, which is a necessary"
concomitant of evaluation process of answer scripts where a large number of
examiners are engaged to evaluate a large number of answer scripts. This
23
Court explained the standard process of moderation in Sanjay Singh v. U.P.
Public Service Commission - 2007 (3) SCC 720 thus:
"“When a large number of candidates appear for an examination, it is"
necessary to have uniformity and consistency in valuation of the answer-
scripts. Where the number of candidates taking the examination are
limited and only one examiner (preferably the paper-setter himself)
"evaluates the answer-scripts, it is to be assumed that there will be"
uniformity in the valuation. But where a large number of candidates take
"the examination, it will not be possible to get all the answer-scripts"
"evaluated by the same examiner. It, therefore, becomes necessary to"
distribute the answer-scripts among several examiners for valuation with
the paper-setter (or other senior person) acting as the Head Examiner.
When more than one examiner evaluate the answer-scripts relating to a
"subject, the subjectivity of the respective examiner will creep into the"
marks awarded by him to the answer- scripts allotted to him for valuation.
Each examiner will apply his own yardstick to assess the answer-scripts.
"Inevitably therefore, even when experienced examiners receive equal"
"batches of answer scripts, there is difference in average marks and the"
"range of marks awarded, thereby affecting the merit of individual"
"candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are"
liberal in valuation and tend to award more marks. Some examiners are
strict and tend to give less marks. Some may be moderate and balanced in
"awarding marks. Even among those who are liberal or those who are strict,"
there may be variance in the degree of strictness or liberality. This means
"that if the same answer-script is given to different examiners, there is all"
likelihood of different marks being assigned. If a very well written
answer-script goes to a strict examiner and a mediocre answer-script goes
"to a liberal examiner, the mediocre answer-script may be awarded more"
"marks than the excellent answer-script. In other words, there is 'reduced"
valuation' by a strict examiner and 'enhanced valuation' by a liberal
examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'.
"Therefore, there is a need to evolve a procedure to ensure uniformity inter"
se the Examiners so that the effect of 'examiner subjectivity' or 'examiner
variability' is minimised. The procedure adopted to reduce examiner
subjectivity or variability is known as moderation. The classic method of
moderation is as follows:
xxx xxx xxx
"(ii) To achieve uniformity in valuation, where more than one examiner is"
"involved, a meeting of the Head Examiner with all the examiners is held"
"soon after the examination. They discuss thoroughly the question paper,"
the possible answers and the weightage to be given to various aspects of
24
the answers. They also carry out a sample valuation in the light of their
discussions. The sample valuation of scripts by each of them is reviewed
by the Head Examiner and variations in assigning marks are further
"discussed. After such discussions, a consensus is arrived at in regard to the"
"norms of valuation to be adopted. On that basis, the examiners are"
"required to complete the valuation of answer scripts. But this by itself,"
does not bring about uniformity of assessment inter se the examiners. In
"spite of the norms agreed, many examiners tend to deviate from the"
"expected or agreed norms, as their caution is overtaken by their propensity"
for strictness or liberality or eroticism or carelessness during the course of
"valuation. Therefore, certain further corrective steps become necessary."
"(iii) After the valuation is completed by the examiners, the Head Examiner"
conducts a random sample survey of the corrected answer scripts to verify
whether the norms evolved in the meetings of examiner have actually been
followed by the examiners………..
(iv) After ascertaining or assessing the standards adopted by each
"examiner, the Head Examiner may confirm the award of marks without"
"any change if the examiner has followed the agreed norms, or suggest"
"upward or downward moderation, the quantum of moderation varying"
according to the degree of liberality or strictness in marking. In regard to
"the top level answer books revalued by the Head Examiner, his award of"
marks is accepted as final. As regards the other answer books below the
"top level, to achieve maximum measure of uniformity inter se the"
"examiners, the awards are moderated as per the recommendations made by"
the Head Examiner.
(v) If in the opinion of the Head Examiner there has been erratic or
"careless marking by any examiner, for which it is not feasible to have any"
"standard moderation, the answer scripts valued by such examiner are"
revalued either by the Head Examiner or any other Examiner who is found
to have followed the agreed norms.
(vi) Where the number of candidates is very large and the examiners are
"numerous, it may be difficult for one Head Examiner to assess the work of"
"all the Examiners. In such a situation, one more level of Examiners is"
"introduced. For every ten or twenty examiners, there will be a Head"
Examiner who checks the random samples as above. The work of the
"Head Examiners, in turn, is checked by a Chief Examiner to ensure proper"
results.
The above procedure of 'moderation' would bring in considerable
uniformity and consistency. It should be noted that absolute uniformity or
consistency in valuation is impossible to achieve where there are several
examiners and the effort is only to achieve maximum uniformity.”
25
"Each examining body will have its own standards of ‘moderation’, drawn up"
with reference to its own experiences and the nature and scope of the
examinations conducted by it. ICAI shall have to disclose the said standards
"of moderation followed by it, if it has drawn up the same, in response to part"
(ii) of first respondent’s query (13).
"23. In its communication dated 22.2.2008, ICAI informed the first"
"respondent that under Regulation 39(2), its Examining Committee had the"
authority to revise the marks based on the findings of the Head Examiners
and any incidental information in its knowledge. This answers part (iv) of
query (13) as to the authority which decides the exercise of the discretion to
make the revision under Regulation 39(2).
"24. In regard to parts (i), (iii) and (v) of query (13), ICAI submits that"
such data is not maintained. Reliance is placed upon the following
observations of this Court in Aditya Bandopadhyay:
“The RTI Act provides access to all information that is available and
existing. This is clear from a combined reading of section 3 and the
definitions of ‘information’ and ‘right to information’ under clauses (f)
and (j) of section 2 of the Act. If a public authority has any information in
"the form of data or analysed data, or abstracts, or statistics, an applicant"
"may access such information, subject to the exemptions in section 8 of the"
Act. But where the information sought is not a part of the record of a
"public authority, and where such information is not required to be"
maintained under any law or the rules or regulations of the public
"authority, the Act does not cast an obligation upon the public authority, to"
26
collect or collate such non-available information and then furnish it to an
applicant.”
"As the information sought under parts (i), (iii) and (v) of query (13) are not"
maintained and is not available in the form of data with the appellant in its
"records, ICAI is not bound to furnish the same."
General submissions of ICAI
25. The learned counsel of ICAI submitted that there are several hundred
examining bodies in the country. With the aspirations of young citizens to
secure seats in institutions of higher learning or to qualify for certain
"professions or to secure jobs, more and more persons participate in more and"
more examinations. It is quite common for an examining body to conduct
examinations for lakhs of candidates that too more than once per year.
"Conducting examinations involving preparing the question papers,"
"conducting the examinations at various centres all over the country, getting"
"the answer scripts evaluated and declaring results, is an immense task for"
"examining bodies, to be completed within fixed time schedules. If the"
examining bodies are required to frequently furnish various kinds of
"information as sought in this case to several applicants, it will add an"
enormous work load and their existing staff will not be able to cope up with
27
the additional work involved in furnishing information under the RTI Act. It
was submitted by ICAI that it conducts several examinations every year
"where more than four lakhs candidates participate; that out of them, about"
"15-16% are successful, which means that more than three and half lakhs of"
candidates are unsuccessful; that if even one percent at those unsuccessful
candidates feel dissatisfied with the results and seek all types of unrelated
"information, the working of ICAI will come to a standstill. It was submitted"
"that for every meaningful user of RTI Act, there are several abusers who will"
attempt to disrupt the functioning of the examining bodies by seeking huge
quantity of information. ICAI submits that the application by the first
"respondent is a classic case of improper use of the Act, where a candidate"
who has failed in an examination and who does not even choose to take the
subsequent examination has been engaging ICAI in a prolonged litigation by
seeking a bundle of information none of which is relevant to decide whether
"his answer script was properly evaluated, nor have any bearing on"
accountability or reducing corruption. ICAI submits that there should be an
effective control and screening of applications for information by the
competent authorities under the Act. We do not agree that first respondent
had indulged in improper use of RTI Act. His application is intended to
bring about transparency and accountability in the functioning of ICAI. How
28
far he is entitled to the information is a different issue. Examining bodies
like ICAI should change their old mindsets and tune them to the new regime
of disclosure of maximum information. Public authorities should realize that
"in an era of transparency, previous practices of unwarranted secrecy have no"
longer a place. Accountability and prevention of corruption is possible only
through transparency. Attaining transparency no doubt would involve
additional work with reference to maintaining records and furnishing
information. Parliament has enacted the RTI Act providing access to
"information, after great debate and deliberations by the Civil Society and the"
"Parliament. In its wisdom, the Parliament has chosen to exempt only certain"
categories of information from disclosure and certain organizations from the
"applicability of the Act. As the examining bodies have not been exempted,"
and as the examination processes of examining bodies have not been
"exempted, the examining bodies will have to gear themselves to comply"
with the provisions of the RTI Act. Additional workload is not a defence. If
"there are practical insurmountable difficulties, it is open to the examining"
bodies to bring them to the notice of the government for consideration so
that any changes to the Act can be deliberated upon. Be that as it may.
26. We however agree that it is necessary to make a distinction in regard
"to information intended to bring transparency, to improve accountability and"
29
"to reduce corruption, falling under section 4(1)(b) and (c) and other"
information which may not have a bearing on accountability or reducing
corruption. The competent authorities under the RTI Act will have to
"maintain a proper balance so that while achieving transparency, the demand"
for information does not reach unmanageable proportions affecting other
"public interests, which include efficient operation of public authorities and"
"government, preservation of confidentiality of sensitive information and"
optimum use of limited fiscal resources.
"27. In view of the above, this appeal is allowed in part and the order of the"
"High Court is set aside and the order of the CIC is restored, subject to one"
"modification in regard to query (13): ICAI to disclose to the first respondent,"
"the standard criteria, if any, relating to moderation, employed by it, for the"
purpose of making revisions under Regulation 39(2).
.………………………J.
(R V Raveendran)
New Delhi; ……………………….J.
"September 2, 2011. (A K Patnaik)"
\224Ú REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. 91 OF 2015
(Arising out of Transfer Petition (Civil) No. 707 of 2012)
Reserve Bank of India ........Petitioner(s)
versus
Jayantilal N. Mistry .....Respondent(s)
With
TRANSFERRED CASE (CIVIL) NO. 92 OF 2015
(Arising out of Transfer Petition (Civil) No. 708 of 2012)
I.C.I.C.I Bank Limited ........ Petitioner(s)
versus
S.S. Vohra and others .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 93 OF 2015
(Arising out of Transfer Petition (Civil) No. 711 of 2012)
National Bank for Agriculture
and Rural Development .........Petitioner(s)
versus
Kishan Lal Mittal .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 94 OF 2015
(Arising out of Transfer Petition (Civil) No. 712 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
P.P. Kapoor ..........Respondent(s)
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2015.12.16
13:23:34 IST
Reason:
1
TRANSFERRED CASE (CIVIL) NO. 95 OF 2015
(Arising out of Transfer Petition (Civil) No. 713 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Subhas Chandra Agrawal ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 96 OF 2015
(Arising out of Transfer Petition (Civil) No. 715 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Raja M. Shanmugam ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 97 OF 2015
(Arising out of Transfer Petition (Civil) No. 716 of 2012)
National Bank for Agriculture
and Rural Development ..........Petitioner(s)
versus
Sanjay Sitaram Kurhade ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 98 OF 2015
(Arising out of Transfer Petition (Civil) No. 717 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
K.P. Muralidharan Nair ...........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 99 OF 2015
(Arising out of Transfer Petition (Civil) No. 718 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Ashwini Dixit ...........Respondent(s)
2
TRANSFERRED CASE (CIVIL) NO. 100 OF 2015
(Arising out of Transfer Petition (Civil) No. 709 of 2012)
Reserve Bank of India .........Petitioner(s)
versus
A.Venugopal and another .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 101 OF 2015
(Arising out of Transfer Petition (Civil) No. 714 of 2012)
Reserve Bank of India .........Petitioner(s)
versus
Dr. Mohan K. Patil and others .........Respondent(s)
JUDGMENT
"M.Y. EQBAL, J."
The main issue that arises for our consideration in these
transferred cases is as to whether all the information sought
"for under the Right to Information Act, 2005 can be denied by"
the Reserve Bank of India and other Banks to the public at
"large on the ground of economic interest, commercial"
"confidence, fiduciary relationship with other Bank on the one"
hand and the public interest on the other. If the answer to
"above question is in negative, then upto what extent the"
information can be provided under the 2005 Act.
3
2. It has been contended by the RBI that it carries out
inspections of banks and financial institutions on regular
basis and the inspection reports prepared by it contain a wide
range of information that is collected in a fiduciary capacity.
The facts in brief of the Transfer Case No.91 of 2015 are that
"during May-June, 2010 the statutory inspection of Makarpura"
Industrial Estate Cooperative Bank Ltd. was conducted by RBI
"under the Banking Regulation Act, 1949. Thereafter, in"
"October 2010, the Respondent sought following information"
"from the CPIO of RBI under the Act of 2005, reply to which is"
tabulated hereunder:
Sr. No. Information sought Reply
1. Procedure Rules and RBI is conducting inspections
Regulations of Inspection under Section 35 of the B.R. Act
being carried out on 1949 (AACS) at prescribed
Co-operative Banks intervals.
2. Last RBI investigation and The Information sought is
audit report carried out by maintained by the bank in a
Shri Santosh Kumar during fiduciary capacity and was
"23rd April, 2010 to 6th May, obtained by Reserve Bank during"
2010 sent to Registrar of the the course of inspection of the
Cooperative of the Gujarat bank and hence cannot be given to
"State, Gandhinagar on the outsiders. Moreover, disclosure"
Makarpura Industrial Estate of such information may harm the
Co-op Bank Ltd Reg. No.2808 interest of the bank & banking
system. Such information is also
exempt from disclosure under
"Section 8(1) (a) & (e) of the RTI Act,"
4
2005.
3. Last 20 years inspection Same as at (2) above
(carried out with name of
inspector) report on above
bank and action taken report.
4. (i) Reports on all co-operative (i) Same as at (2) above
banks gone on liquidation
(ii) This information is not
(ii) action taken against all available with the
Directors and Managers for Department
recovery of public funds and
powers utilized by RBI and
analysis and procedure
adopted.
5. Name of remaining No specific information has
co-operative banks under been sought
your observations against
irregularities and action
taken reports
6. Period required to take No specific information has
action and implementations been sought
"3. On 30.3.2011, the First Appellate Authority disposed of"
the appeal of the respondent agreeing with the reply given by
"CPIO in query No.2, 3 & first part of 4, relying on the decision"
of the Full Bench of CIC passed in the case of Ravin
Ranchochodlal Patel and another vs. Reserve Bank of India.
"Thereafter, in the second appeal preferred by the aggrieved"
"respondent, the Central Information Commission by the"
"impugned order dated 01.11.2011, directed RBI to provide"
5
information as per records to the Respondent in relation to
queries Nos.2 to 6 before 30.11.2011. Aggrieved by the
"decision of the Central Information Commission (CIC),"
petitioner RBI moved the Delhi High Court by way of a Writ
Petition inter alia praying for quashing of the aforesaid order of
"the CIC. The High Court, while issuing notice, stayed the"
operation of the aforesaid order.
"4. Similarly, in Transfer Case No. 92 of 2015, the"
Respondent sought following information from the CPIO of RBI
"under the Act of 2005, reply to which is tabulated hereunder:"
Sr. Information sought Reply
No.
1. The Hon’ble FM made a In the absence of the specific
"written statement on the Floor details, we are not able to provide"
of the House which inter alia any information.
must have been made after
verifying the records from RBI
and the Bank must have the
copy of the facts as reported
by FM. Please supply copy of
the note sent to FM
2. The Hon’ble FM made a We do not have this information.
statement that some of the
"banks like SBI, ICICI Bank"
"Ltd, Bank of Baroda, Dena"
"Bank, HSBC Bank etc. were"
issued letter of displeasure for
violating FEMA guidelines for
opening of accounts where as
some other banks were even
6
fined Rupees one crore for
such violations. Please give
me the names of the banks
with details of violations
committed by them.
3. ‘Advisory Note’ issued to ICICI An Advisory Letter had been issued
"Bank for account opened by to the bank in December, 2007 for"
some fraudsters at its Patna the bank’s Patna branch having
Branch Information sought failed to (a) comply with the RBI
"about ""exact nature of guidelines on customer"
"irregularities committed by the identification, opening/operating"
"bank under ""FEMA"". Also give customer accounts, (b) the bank"
list of other illegalities not having followed the normal
committed by IBL and other banker’s prudence while opening
details of offences committed an account in question.
by IBL through various
branches in India and abroad As regards the list of supervisory
"along with action taken by the action taken by us, it may be"
Regulator including the names stated that the query is too general
"and designations of his and not specific. Further, we may"
"officials branch name, type of state that Supervisory actions"
offence committed etc. The taken were based on the scrutiny
exact nature of offences conducted under Section 35 of the
committed by Patna Branch of Banking Regulation (BR) Act. The
the bank and other branches information in the scrutiny report
of the bank and names of his is held in fiduciary capacity and
"officials involved, type of the disclosure of which can affect"
offence committed by them the economic interest of the
and punishment awarded by country and also affect the
"concerned authority, names commercial confidence of the"
and designation of the bank. And such information is
"designated authority, who also exempt from disclosure under"
investigated the above case Section 8(1)(a)(d) & (e) of the RTI
"and his findings and Act (extracts enclosed). We,"
"punishment awarded."" therefore, are unable to accede to"
your request.
"4. Exact nature of irregularities In this regard, self explicit print"
committed by ICICI Bank in out taken from the website of
Hong Kong Securities and Futures
"Commission, Hong Kong is"
enclosed.
5. ICICI Bank’s Moscow Branch We do not have the information.
involved in money laundering
act.
6. Imposition of fine on ICICI We do not have any information to
7
Bank under Section 13 of the furnish in this regard.
PMLA for loss of documents in
floods .
7. Copy of the Warning or As regards your request for
‘Advisory Note’ issued twice copies/details of advisory letters to
issued to the bank in the last
"ICICI Bank, we may state that"
two years and reasonssuch information is exempt from
recorded therein. disclosure under Section 8(1)(a)(d)
and (e) of the RTI Act. The
Name and designation of the scrutiny of records of the ICICI
authority who conducted this Bank is conducted by our
check and his decision to Department of Banking
issue an advisory note only Supervision (DBS). The Chief
instead of penalties to be General Manager-in charge of the
"imposed under the Act. DBS, Centre Office Reserve Bank"
of India is Shri S. Karuppasamy.
"5. In this matter, it has been alleged by the petitioner RBI"
that the respondent is aggrieved on account of his application
form for three-in-one account with the Bank and ICICI
"Securities Limited (ISEC) lost in the floods in July, 2005 and"
"because of non-submission of required documents, the"
"Trading account with ISEC was suspended, for which"
"respondent approached the District Consumer Forum, which"
rejected the respondent’s allegations of tempering of records
and dismissed the complaint of the respondent. His appeal
was also dismissed by the State Commission. Respondent
then moved an application under the Act of 2005 pertaining to
8
the suspension of operation of his said trading account. As
the consumer complaint as well as the abovementioned
"application did not yield any result for the respondent, he"
"made an application under the Act before the CPIO, SEBI,"
"appeal to which went up to the CIC, the Division Bench of"
which disposed of his appeal upholding the decision of the
"CPIO and the Appellate Authority of SEBI. Thereafter, in"
"August 2009, respondent once again made the present"
application under the Act seeking aforesaid information.
"Being aggrieved by the order of the appellate authority,"
"respondent moved second appeal before the CIC, who by the"
impugned order directed the CPIO of RBI to furnish
information pertaining to Advisory Notes as requested by the
"respondent within 15 working days. Hence, RBI approached"
Bombay High Court by way of writ petition.
"6. In Transfer Case No. 93 of 2015, the Respondent sought"
following information from the CPIO of National Bank for
"Agriculture and Rural Development under the Act of 2005,"
reply to which is tabulated hereunder:-
9
Sl. Information Sought Reply
No.
1. Copies of inspection reports of Furnishing of information is
Apex Co-operative Banks of exempt under Section 8(1)(a) of the
various States/Mumbai DCCB RTI Act.
from 2005 till date
2. Copies of all correspondences Different Departments in NABARD
with Maharashtra State deal with various issues related to
Govt./RBI/any other agency of MSCB. The query is general in
State/Central Co-operative Bank nature. Applicant may please be
"from January, 2010 till date. specific in query/information"
sought.
3. Provide confirmed/draft minutes Furnishing of information is
of meetings of Governing exempt under Sec. 8(1)(d) of the
Board/Board of RTI Act.
Directors/Committee of Directors
"of NABARD from April, 2007 till"
date
4. Provide information on Compliance available on the
compliance of Section 4 of RTI website of NABARD i.e.
"Act, 2005 by NABARD www.nabard.org"
5. Information may be provided on a -
CD
7. The First Appellate Authority concurred with the CPIO
and held that inspection report cannot be supplied in terms of
Section 8(1)(a) of the RTI Act. The Respondent filed Second
"Appeal before the Central Information Commission, which was"
allowed. The RBI filed writ petition before the High Court
challenging the order of the CIC dated 14.11.2011 on identical
10
issue and the High Court stayed the operation of the order of
the CIC.
"8. In Transfer Case No. 94 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:"
Sl. Information Sought Reply
No.
1. As mentioned at 2(a) what is Pursuant to the then Finance
RBI doing about uploading the Minister’s Budget Speech made in
"entire list of Bank defaulters Parliament on 28th February, 1994,"
on the bank’s website? When in order to alert the banks and FIs
will it be done? Why is it not and put them on guard against the
done? defaulters to other lending
institutions. RBI has put in place
scheme to collect details about
borrowers of banks and FIs with
outstanding aggregating Rs. 1 crore
and above which are classified as
‘Doubtful’ or ‘Loss or where suits
"are filed, as on 31st March and 30th"
September each year. In February
"1999, Reserve Bank of India had"
also introduced a scheme for
collection and dissemination of
information on cases of willful
default of borrowers with
outstanding balance of Rs. 25 lakh
"and above. At present, RBI"
disseminates list of above said non
suit filed ‘doubtful’ and ‘loss’
borrowed accounts of Rs.1 crore
and above on half-yearly basis (i.e.
as on March 31 and September 30)
to banks and FIs. for their
confidential use. The list of
non-suit filed accounts of willful
defaulters of Rs. 25 lakh and above
is also disseminated on quarterly
11
basis to banks and FIs for their
confidential use. Section 45 E of
the Reserve Bank of India Act 1934
prohibits the Reserve Bank from
disclosing ‘credit information’
except in the manner provided
therein.
"(iii) However, Banks and FIs"
"were advised on October 1, 2002 to"
furnish information in respect of
suit-filed accounts between Rs. 1
lakh and Rs. 1 crore from the
"period ended March, 2002 in a"
phased manner to CIBIL only.
CIBIL is placing the list of
defaulters (suit filed accounts) of
Rs. 1 crore and above and list of
willful defaulters (suit filed
accounts) of Rs. 25 lakh and above
"as on March 31, 2003 and onwards"
on its website (www.cibil.com)
9. The Central Information Commission heard the parties
through video conferencing. The CIC directed the CPIO of the
petitioner to provide information as per the records to the
Respondent in relation to query Nos. 2(b) and 2(c) before
10.12.2011. The Commission has also directed the Governor
RBI to display this information on its website before
"31.12.2011, in fulfillment of its obligations under Section 4(1)"
"(b) (xvii) of the Right to Information Act, 2005 and to update it"
each year.
12
"10. In Transfer Case No.95 of 2015, following information"
was sought and reply to it is tabulated hereunder:
Sl. Information Sought Reply
No.
1. Complete and detailed information As the violations of which
including related the banks were issued
documents/correspondence/file Show Cause Notices and
noting etc of RBI on imposing fines on subsequently imposed
some banks for violating rules like also penalties and based on the
referred in enclosed news clipping findings of the Annual
Financial Inspection (AFI) of
"2. Complete list of banks which were the banks, and the"
issued show cause notices before fine information is received by
"was imposed as also referred in us in a fiduciary capacity,"
enclosed news clipping mentioning the disclosure of such
also default for which show cause information would
notice was issued to each of such prejudicially affect the
banks economic interests of the
State and harm the bank’s
competitive position. The
SCNs/findings/reports/
associated
correspondences/orders are
therefore exempt from
disclosure in terms of the
provisions of Section 8(1)(a)
"(d) and (e) of the RTI Act,"
2005.
2. Complete list of banks which were -do-
issued show cause notices before fine
was imposed as also referred in
enclosed news clippings mentioning
also default for which show cause
notice was issued to each of such
banks.
3. List of banks out of those in query (2) Do
above where fine was not imposed
giving details like if their reply was
satisfactory etc.
4. List of banks which were ultimately The names of the 19 banks
found guilty and fines mentioning also and details of penalty
amount of fine on each of the bank imposed on them are
13
and criterion to decide fine on each of furnished in Annex 1.
the bank Regarding the criterion for
"deciding the fine, the"
penalties have been
imposed on these banks for
contravention of various
directions and instructions
such as failure to carry out
proper due diligence on
user appropriateness and
"suitability of products,"
selling derivative products
to users not having proper
"risk Management policies,"
not verifying the
underlying /adequacy of
underlying and eligible
limits under past
"performance route, issued"
by RBI in respect of
derivative transactions.
5. Is fine imposed /action taken on some No other bank was
other banks also other than as penalized other than those
"mentioned in enclosed news clipping mentioned in the Annex, in"
the context of press release
No.2010-2011/1555 of
"April 26, 2011"
"6. If yes please provide details Not Applicable, in view of"
the information provided in
query No.5
7. Any other information The query is not specific.
8. File notings on movement of this RTI Copy of the note is
petition and on every aspect of this enclosed.
RTI Petition
"11. In the Second Appeal, the CIC heard the respondent via"
telephone and the petitioner through video conferencing. As
14
"directed by CIC, the petitioner filed written submission. The"
CIC directed the CPIO of the Petitioner to provide complete
information in relation to queries 1 2 and 3 of the original
application of the Respondent before 15.12.2011.
"12. In Transfer Case No. 96 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
1. Before the Orissa High Court RBI The Information sought by you is
has filed an affidavit stating that exempted under Section 8(1)(a) & (e)
"the total mark to market losses of RTI Act, which state as under;"
on account of currency
derivatives is to the tune of more 8(1) notwithstanding anything
"than Rs. 32,000 crores Please contained in this Act, there shall be"
give bank wise breakup of the no obligation to give any citizen
MTM Losses
(a) information disclosure of
which would prejudicially affect
the sovereignty and integrity of
India the security strategic
scientific or economic interests of
"the state, relation with foreign"
State or lead to incitement of an
offence.
(e) Information available to a
person in his fiduciary
relationship unless the competent
authority is satisfied that larger
public interest warrants the
disclosure of such information.
2. What is the latest figure available Please refer to our response to 1
with RBI of the amount of losses above.
suffered by Indian Business
15
houses? Please furnish the latest
figures bank wise and customer
wise.
3. Whether the issue of derivative We have no information in this
losses to Indian exporters was matter.
discussed in any of the meetings
of Governor/Deputy Governor or
senior official of the Reserve
Bank of India? If so please
furnish the minutes of the
meeting where the said issue was
discussed
4. Any other Action Taken Reports We have no information in this
by RBI in this regard. matter.
13. The CIC allowed the second appeal and directed the CPIO
FED of the Petitioner to provide complete information in
"queries 1, 2, 9 and 10 of the original application of the"
"Respondent before 05.01.2012. The CPIO, FED complied with"
"the order of the CIC in so far queries 2, 9 and 10 are"
concerned. The RBI filed writ petition for quashing the order of
CIC so far as it directs to provide complete information as per
record on query No.1.
"14. In Transfer Case No. 97 of 2015, the Respondent sought"
following information from the CPIO of National Bank for
16
"Agriculture and Rural Development under the Act of 2005,"
reply to which is tabulated hereunder:-
Sl. Information Sought Reply
No.
1. The report made by NABARD regarding 86 Please refer to your
N.P.A. Accounts for Rs. 3806.95 crore of application dated 19
"Maharashtra State Co-operative Bank Ltd. (if April, 2011 seeking"
any information of my application is not information under the
"available in your Office/Department/ RTI Act, 2005 which"
"Division/Branch, transfer this application to was received by us on"
"the concerned Office/Department/ 06th May, 2011. In"
"Division/Branch and convey me accordingly this connection, we"
as per the provision of Section 6 (3) of Right advise that the
"to Information Act, 2005. questions put forth by"
you relate to the
observations made in
the Inspection Report
of NABARD pertaining
to MSCB which are
confidential in nature.
Since furnishing the
information would
impede the process of
investigation or
apprehension or
prosecution of
"offenders, disclosure"
of the same is
exempted under
Section 8(1)(h) of the
Act.
"15. In Transfer Case No. 98 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
17
Sl. Information Sought Reply
No.
1. What contraventions and violations were The bank was penalized
made by SCB in respect of RBI instructions along with 18 other
on derivatives for which RBI has imposed banks for contravention
penalty of INR 10 lakhs on SCB in exercise of various instructions
of its powers vested under Section 47(1)(b) issued by the Reserve
"of Banking Regulation Act, 1949 and as Bank of India in respect"
"stated in the RBI press release dated April of derivatives, such as,"
"26, 2011 issued by Department of failure to carry out due"
Communications RBI diligence in regard to
"suitability of products,"
selling derivative
products to users not
having risk
management policies
and not verifying the
underlying/adequacy of
underlying and eligible
limits under past
performance route. The
information is also
available on our
website under press
releases.
2. Please provide us the copies/details of all Complaints are received
"the complaints filed with RBI against SCB, by Reserve Bank of"
accusing SCB of mis-selling derivative India and as they
"products, failure to carry out due diligence constitute the third"
"in regard to suitability of products, not party information, the"
verifying the underlying/adequacy of information requested
underlying and eligible limits under past by you cannot be
performance and various other disclosed in terms of
non-compliance of RBI instruction on Section 8(1)(d) of the
"derivatives. RTI Act, 2005."
"Also, please provide the above information"
in the following format
. Date of the complaint
Name of the complaint
Subject matter of the complaint
Brief description of the facts and
accusations made by the complaint.
18
Any other information available with RBI
with respect to violation/contraventions by
SCB of RBI instructions on derivatives.
3. Please provide us the copies of all the The action has been
written replies/correspondences made by taken against the bank
SCB with RBI and the recordings of all the based on the findings of
oral submissions made by SCB to defend the Annual Financial
and explain the violations/contraventions Inspection (AFI) of the
made by SCB bank which is
conducted under the
provisions of Sec.35 of
"the BR Act, 1949. The"
findings of the
inspection are
confidential in nature
intended specifically for
the supervised entities
and for corrective
action by them. The
information is received
by us in fiduciary
capacity disclosure of
which may prejudicially
affect the economic
interest of the state.
As such the
information cannot be
disclosed in terms of
Section 8(1) (a) and (e)
"of the RTI Act, 2005"
4. Please provide us the details/copies of the -do-
"findings recordings, enquiry reports,"
directive orders file notings and/or any
information on the investigations conducted
by RBI against SCB in respect of
non-compliance by SCB thereby
establishing violations by SCBV in respect
of non compliances of RBI instructions on
derivatives.
Please also provide the above information
in the following format.
. Brief violations/contraventions made by
SCB
. In brief SCB replies/defense/explanation
19
against each violations/contraventions
made by it under the show cause notice.
. RBI investigations/notes/on the SCB
Replies/defense/explanations for each of
the violation/contravention made by SCB.
. RBI remarks/findings with regard to the
violations/contraventions made by SCB.
"16. In Transfer Case No. 99 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
"1. That, what action has the department 1. Enquiry was"
taken against scams/financial carried out against
irregularities of United Mercantile scams/financial
Cooperative Bank Ltd as mentioned in the irregularities of United
enclosed published news. Provide day to Mercantile Cooperative
day progress report of the action taken. Bank Ltd. as mentioned
in the enclosed
published news.
2. Note/explanation
has been called for from
the bank vide our letter
"dated 8th July, 2011"
regarding errors
mentioned in enquiry
report.
3. The other
information asked here
is based on the
conclusions of
Inspection Report. We
would like to state that
conclusions found
20
during inspections are
confidential and the
reports are finalized on
the basis of information
received from banks. We
received the information
from banks in a
confident capacity.
"Moreover, disclosure of"
such information may
cause damage to the
banking system and
financial interests of the
state. Disclosure of
such type of information
is exempted under
Section 8(1)(a) and (e) of
"RTI Act, 2005."
2. That permission for opening how many United Mercantile
extension counters was obtained by United Cooperative Bank Ltd.
"Mercantile Cooperative Bank Ltd from RBI. was permitted to open 5,"
Provide details of expenditure incurred for extension counters.
constructing the extension counters. Had
the bank followed tender system for these The information
"constructions, if yes, provide details of regarding expenditure"
concerned tenders. incurred on
construction of these
extension counters and
tenders are not available
with Reserve Bank of
India.
"17. In Transfer Case No. 100 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
21
Sl. Information Sought Reply
No.
1. Under which Grade The George Town The classification of
"Co-operative Bank Ltd., Chennai, has been banks into various"
categorised as on 31.12.2006? grades are done on the
basis of inspection
findings which is based
on information/
documents obtained in
a fiduciary capacity and
cannot be disclosed to
outsiders. It is also
exempted under Section
8(1)(e) of right to
"Information Act, 2005."
"18. The Appellate Authority observed that the CPIO, UBD has"
replied that the classification of banks into various grades is
done on the basis of findings recorded in inspection which are
based on information/documents obtained in a fiduciary
"capacity and cannot be disclosed to outsiders. The CPIO, UBD"
has stated that the same is exempted under Section 8(1)(e) of
RTI Act. Apart from the fact that information sought by the
"appellant is sensitive and cannot be disclosed, it could also"
harm the competitive position of the co-operative bank.
"Therefore, exemption from disclosure of the Information is"
available under Section 8(1)(d) of the RTI Act.
22
"19. In Transfer Case No. 101 of 2015, with regard to"
"Deendayal Nagri Shakari Bank Ltd, District Beed, the"
Respondent sought following information from the CPIO of RBI
"under the Act of 2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
1. Copies of complaints received by RBI Disclosure of
"against illegal working of the said bank, information regarding"
including violations of the Standing complaints received
Orders of RBI as well as the provisions from third parties
"under Section 295 of the Companies Act, would harm the"
1956. competitive position of a
third party. Further
such information is
maintained in a
fiduciary capacity and
is exempted from
disclosure under
Sections 8(1)(d) and (e)
of the RTI Act.
2. Action initiated by RBI against the said (a) A penalty of Rs. 1
"bank, including all correspondence lakh was imposed on"
between RBI and the said bank officials. Deendayal Nagri
Sahakari Bank Ltd. for
violation of directives on
loans to directors/their
relatives/concerns in
which they are
interested. The bank
paid the penalty on
08.10.2010.
(b) As regards
correspondence
"between RBI and the,"
"co-operative bank, it is"
advised that such
information is
maintained by RBI in
fiduciary capacity and
23
hence cannot be given
to outsiders. Moreover
disclosure of such
information may harm
the interest of the bank
and banking system.
Such information is
exempt from disclosure
under Section 8(1)(a)
and (e) of the RTI Act.
"3. Finding of the enquiry made by RBI, Such information is"
actions proposed and taken against the maintained by the bank
"bank and its officials-official notings, in a fiduciary capacity"
"decisions, and final orders passed and and is obtained by RBI"
issued. during the course of
inspection of the bank
and hence cannot be
given to outsiders. The
disclosure of such
information would
harm the competitive
position of a third
party. Such
"information is,"
"therefore, exempted"
from disclosure under
Section 8(1)(d) and (e)
of the RTI Act.
As regards action taken
"against the bank, are"
reply at S. No.2 (a)
above.
4. Confidential letters received by RBI from See reply at S. NO.2 (a)
the Executive Director of Vaishnavi above.
Hatcheries Pvt. Ltd. complaining about
the illegal working and pressure policies of
the bank and its chairman for misusing
the authority of digital signature for
sanction of the backdated resignations of
the chairman of the bank and few other
directors of the companies details of
action taken by RBI on that.
24
20. The First Appellate Authority observed that the CPIO had
furnished the information available on queries 2 and 4.
Further information sought in queries 1 and 3 was exempted
under Section 8(1)(a)(d) and (e) of the RTI Act.
"21. Various transfer petitions were, therefore, filed seeking"
transfer of the writ petitions pending before different High
"Courts. On 30.5.2015, while allowing the transfer petitions"
filed by Reserve Bank of India seeking transfer of various writ
"petitions filed by it in the High Courts of Delhi and Bombay,"
this Court passed the following orders:
"""Notice is served upon the substantial number of"
respondents. Learned counsel for the respondents
"have no objection if Writ Petition Nos. 8400 of 2011,"
"8605 of 2011, 8693 of 2011, 8583 of 2011, 32 of 2012,"
"685 of 2012, 263 of 2012 and 1976 of 2012 pending in"
the High Court of Delhi at New Delhi and Writ Petition
"(L) Nos. 2556 of 2011, 2798 of 2011 and 4897 of 2011"
pending in the High Court of Bombay are transferred
"to this Court and be heard together. In the meanwhile,"
the steps may be taken to serve upon the unserved
respondents.
"Accordingly, the transfer petitions are allowed and the"
above mentioned writ petitions are withdrawn to this
Court. The High Court of Delhi and the High Court of
Bombay are directed to remit the entire record of the
"said writ petitions to this Court within four weeks."""
25
"22. Mr. T.R. Andhyarujina, learned senior counsel appearing"
"for the petitioner-Reserve Bank of India, assailed the"
impugned orders passed by the Central Information
Commissioner as illegal and without jurisdiction. Learned
Counsel referred various provisions of The Reserve Bank of
"India Act, 1934; The Banking Regulation Act, 1949 and The"
"Credit Information Companies (Regulation) Act, 2005 and"
made the following submissions:-
I) The Reserve Bank of India being the statutory
authority has been constituted under the Reserve Bank of
"India Act, 1934 for the purpose of regulating and"
controlling the money supply in the country. It also acts as
statutory banker with the Government of India and State
"Governments and manages their public debts. In addition,"
it regulates and supervises Commercial Banks and
Cooperative Banks in the country. The RBI exercises
"control over the volume of credit, the rate of interest"
chargeable on loan and advances and deposits in order to
ensure the economic stability. The RBI is also vested with
"the powers to determine ""Banking Policy"" in the interest of"
"banking system, monetary stability and sound economic"
growth.
The RBI in exercise of powers of powers conferred under
"Section 35 of the Banking Regulation Act, 1949 conducts"
inspection of the banks in the country.
II) The RBI in its capacity as the regulator and
supervisor of the banking system of the country access to
various information collected and kept by the banks. The
inspecting team and the officers carry out inspections of
different banks and much of the information accessed by
the inspecting officers of RBI would be confidential.
"Referring Section 28 of the Banking Regulation Act, it was"
submitted that the RBI in the public interest may publish
26
"the information obtained by it, in a consolidated form but"
not otherwise.
III) The role of RBI is to safeguard the economic and
financial stability of the country and it has large contingent
of expert advisors relating to matters deciding the economy
of the entire country and nobody can doubt the bona fide of
"the bank. In this connection, learned counsel referred the"
decision of this Court in the case of Peerless General
Finance and Investment Co. Limited and Another Vs.
"Reserve Bank of India, 1992 Vol. 2 SCC 343."
IV) Referring the decision in the case of B.
Suryanarayana Vs. N. 1453 The Kolluru Parvathi
"Co-Op. Bank Ltd., 1986 AIR (AP) 244, learned counsel"
submitted that the Court will be highly chary to enter into
and interfere with the decision of Reserve Bank of India.
Learned Counsel also referred to the decision in the case of
Peerless General Finance and Investment Co. Limited
"and Another Vs. Reserve Bank of India, 1992 Vol. 2 SCC"
343 and contended that Courts are not to interfere with the
economic policy which is a function of the experts.
V) That the RBI is vested with the responsibility of
regulation and supervision of the banking system. As part
"of its supervisory role, RBI supervises and monitors the"
banks under its jurisdiction through on-site inspection
conducted on annual basis under the statutory powers
derived by it under section 35 of the Banking Regulation
"Act 1949, off-site returns on key financial parameters and"
engaging banks in dialogue through periodical meetings.
RBI may take supervisory actions where warranted for
violations of its guidelines/directives. The supervisory
"actions would depend on the seriousness of the offence,"
systemic implications and may range from imposition of
"penalty, to issue of strictures or letters of warning. While"
RBI recognizes and promotes enhanced transparency in
"banks disclosures to the public, as transparency"
"strengthens market discipline, a bank may not be able to"
disclose all data that may be relevant to assess its risk
"profile, due to the inherent need to preserve confidentially"
"in relation to its customers. In this light, while mandatory"
disclosures include certain prudential parameters such as
"capital adequacy, level of Non Performing Assets etc., the"
supervisors themselves may not disclose all or some
"information obtained on-site or off-site. In some countries,"
"wherever there are supervisory concerns, ""prompt corrective"
"action"" programmes are normally put in place, which may"
or may not be publicly disclosed. Circumspection in
disclosures by the supervisors arises from the potential
"market reaction that such disclosure might trigger, which"
27
"may not be desirable. Thus, in any policy of transparency,"
there is a need to build processes which ensure that the
benefits of supervisory disclosure are appropriately weighed
"against the risk to stakeholders, such as depositors."
"VI) As per the RBI policy, the reports of the annual"
"financial inspection, scrutiny of all banks/ financial"
institutions are confidential document cannot be disclosed.
"As a matter of fact, the annual financial inspection/"
scrutiny report reflect the supervisor’s critical assessment
of banks and financial institutions and their functions.
Disclosure of these scrutiny and information would create
misunderstanding/ misinterpretation in the minds of the
"public. That apart, this may prove significantly counter"
productive. Learned counsel submitted that the disclosure
of information sought for by the applicant would not serve
the public interest as it will give adverse impact in public
confidence on the bank. This has serious implication for
financial stability which rests on public confidence. This
will also adversely affect the economic interest of the State
and would not serve the larger public interest.
23. The specific stand of petitioner Reserve Bank of India is
that the information sought for is exempted under Section 8(1)
"(a), (d) and (e) of the Right to Information Act, 2005. As the"
"regulator and supervisor of the banking system, the RBI has"
discretion in the disclosure of such information in public
interest.
"24. Mr. Andhyarujina, learned senior counsel, referred"
various decisions to the High Court and submitted that the
disclosure of information would prejudicially affect the
"economic interest of the State. Further, if the information"
28
sought for is sensitive from the point of adverse market
reaction leading to systematic crisis for financial stability.
25. Learned senior counsel put heavy reliance on the Full
Bench decision of the Central Information Commissioner and
"submitted that while passing the impugned order, the Central"
Information Commissioner completely overlooked the Full
Bench decision and ignored the same. According to the
"learned counsel, the Bench, which passed the impugned"
"order, is bound to follow the Full Bench decision. The"
Commission also erred in holding that the Full Bench decision
is per incuriam as the Full Bench has not considered the
statutory provisions of Section 8 (2) of the Right to Information
"Act, 2005."
26. Learned senior counsel also submitted that the
Commission erred in holding that even if the information
"sought for is exempted under Section 8(1) (a), (d) or (e) of the"
"Right to Information Act, Section 8(2) of the RTI Act would"
mandate the disclosure of the information.
29
27. Learned senior counsel further submitted that the basic
"question of law is whether the Right to Information Act, 2005"
overrides various provisions of special statutes which confer
confidentiality in the information obtained by the RBI.; If the
"Respondents are right in their contention, these statutory"
"provisions of confidentiality in the Banking Regulation Act,"
"1949, the Reserve Bank of India Act, 1934 and the Credit"
"Information Companies (Regulation) Act, 2005 would be"
"repealed or overruled by the Right to Information Act, 2005."
"28. Under the Banking Regulation Act, 1949, the Reserve"
Bank of India has a right to obtain information from the banks
under Section 27. These information can only be in its
discretion published in such consolidated form as RBI deems
fit. Likewise under Section 34A production of documents of
confidential nature cannot be compelled. Under sub-section
"(5) of Section 35, the Reserve Bank of India may carry out"
inspection of any bank but its report can only be disclosed if
the Central Government orders the publishing of the report of
the Reserve Bank of India when it appears necessary.
30
"29. Under Section 45E of the Reserve Bank of India Act,"
"1934, disclosure of any information relating to credit"
information submitted by banking company is confidential
and under Section 45E(3) notwithstanding anything contained
"in any law no court, tribunal or authority can compel the"
Reserve Bank of India to give information relating to credit
information etc.
30. Under Section 17(4) of the Credit Information Companies
"(Regulation) Act, 2005, credit information received by the"
credit information company cannot be disclosed to any person.
"Under Section 20, the credit information company has to"
adopt privacy principles and under Section 22 there cannot be
unauthorized access to credit information.
31. It was further contended that the Credit Information
"Companies Act, 2005 was brought into force after the Right to"
"Information act, 2005 w.e.f. 14.12.2006. It is significant to"
"note that Section 28 of Banking Regulation Act, 1949 was"
amended by the Credit Information Companies (Regulation)
"Act, 2005. This is a clear indication that the Right to"
31
"Information Act, 2005 cannot override credit information"
sought by any person in contradiction to the statutory
provisions for confidentiality.
32. This is in addition to other statutory provisions of privacy
"in Section 44 of State Bank of India Act, 1955, Section 52,"
"State Bank of India (Subsidiary Banks) Act, 1959, Section 13"
of the Banking Companies (Acquisition & Transfer of
"Undertakings) Act, 1970."
"33. The Right to Information Act, 2005 is a general provision"
which cannot override specific provisions relating to
confidentiality in earlier legislation in accordance with the
principle that where there are general words in a later statute
it cannot be held that the earlier statutes are repealed altered
or discarded.
34. Learned counsel submitted that Section 22 of the Right
"to Information Act, 2005 cannot have the effect of nullifying"
and repealing earlier statutes in relation to confidentiality.
This has been well settled by this Court in
32
a) Raghunath vs. state of Karnataka 1992(1) SCC
335 at p.348 pages 112 and 114
"b) ICICI Bank vs. SIDCO Leather etc., 2006(10)"
"SCC 452 at p. 466, paras 36 & 37"
"c) Central Bank vs. Kerala, 2009 (4) SCC 94 at p."
132-133 para 104
"d) AG Varadharajalu vs. Tamil Nadu, 1998 (4)"
SCC 231 at p. 236 para 16.
"Hence, the Right to Information Act, 2005 cannot override the"
provisions for confidentiality conferred on the RBI by the
earlier statutes referred to above.
"35. The Preamble of the RTI Act, 2005 itself recognizes the"
fact that since the revealing of certain information is likely to
"conflict with other public interests like ""the preservation of"
"confidentiality of sensitive information"", there is a need to"
harmonise these conflicting interests. It is submitted that
certain exemptions were carved out in the RTI Act to
harmonise these conflicting interests. This Court in Central
Board of Secondary Education and Anr. vs. Aditya
"Bandopadhyay and Ors, (2011)8 SCC 497, has observed as"
under:-
33
"""When trying to ensure that the right to information"
does not conflict with several other public interests (which
"includes efficient operations of the Governments,"
"preservation of confidentiality of sensitive information,"
"optimum use of limited fiscal resources, etc.), it is difficult"
to visualise and enumerate all types of information which
require to be exempted from disclosure in public interest.
The legislature has however made an attempt to do so. The
enumeration of exemptions is more exhaustive than the
"enumeration of exemptions attempted in the earlier Act,"
"that is, Section 8 of the Freedom to Information Act, 2002."
The courts and Information Commissions enforcing the
provisions of the RTI Act have to adopt a purposive
"construction, involving a reasonable and balanced"
"approach which harmonises the two objects of the Act,"
while interpreting Section 8 and the other provisions of the
"Act."""
36. Apart from the legal position that the Right to
"Information Act, 2005 does not override statutory provisions"
"of confidentiality in other Act, it is submitted that in any case"
"Section 8(1)(a) of the Right to Information Act, 2005 states"
that there is no obligation to give any information which
pre-judiciously affects the economic interests of the States.
Disclosure of such vital information relating to banking would
pre-judiciously affect the economic interests of the State. This
was clearly stated by the Full Bench of the Central Information
Commission by its Order in the case of Ravin Ranchchodlal
Patel (supra). Despite this emphatic ruling individual
Commissioners of the Information have disregarded it by
34
holding that the decision of the Full Bench was per incurium
and directed disclosure of information.
"37. Other exceptions in Section 8, viz 8(1)(a)(d), 8(1)(e) would"
"also apply to disclosure by the RBI and banks. In sum,"
learned senior counsel submitted that the RBI cannot be
directed to disclose information relating to banking under the
"Right to Information Act, 2005."
"38. Mr. Prashant Bhushan, learned counsel appearing for"
"the respondents in Transfer Case Nos.94 & 95 of 2015, began"
his arguments by referring the Preamble of the Constitution
and submitted that through the Constitution it is the people
"who have created legislatures, executives and the judiciary to"
exercise such duties and functions as laid down in the
constitution itself.
39. The right to information regarding the functioning of
public institutions is a fundamental right as enshrined in
Article 19 of the Constitution of India. This Hon’ble Court has
declared in a plethora of cases that the most important value
35
for the functioning of a healthy and well informed democracy
is transparency. Mr. Bhushan referred Constitution Bench
judgment of this Court in the case of State of U.P. vs. Raj
"Narain, AIR 1975 SC 865, and submitted that it is a"
"Government’s responsibility like ours, where all the agents of"
"the public must be responsible for their conduct, there can be"
but few secrets. The people of this country have a right to
"know every public act, everything that is done in a public way,"
"by their functionaries. The right to know, which is derived"
"from the concept of freedom of speech, though not absolute, is"
"a factor which should make one wary, when secrecy is claimed"
"for transactions which can, at any rate, have no repercussion"
"on public security. To cover with veil of secrecy, the common"
routine business is not in the interest of public.
40. In the case of S.P. Gupta v. President of India and
"Ors., AIR 1982 SC 149, a seven Judge Bench of this Court"
made the following observations regarding the right to
information:-
"""There is also in every democracy a certain amount of"
"public suspicion and distrust of Government, varying of"
"course from time to time according to its performance,"
36
which prompts people to insist upon maximum exposure of
its functioning. It is axiomatic that every action of the
Government must be actuated by public interest but even
"so we find cases, though not many, where Governmental"
action is taken not for public good but for personal gain or
other extraneous considerations. Sometimes Governmental
action is influenced by political and other motivations and
"pressures and at times, there are also instances of misuse"
"or abuse of authority on the part of the executive. Now, if"
secrecy were to be observed in the functioning of
Government and the processes of Government were to be
"kept hidden from public scrutiny, it would tend to promote"
"and encourage oppression, corruption and misuse or abuse"
"of authority, for it would all be shrouded in the veil of"
secrecy without any public accountability. But if there is an
open Government with means of information available to
"the public, there would be greater exposure of the"
functioning of Government and it would help to assure the
people a better and more efficient administration. There can
be little doubt that exposure to public gaze and scrutiny is
one of the surest means of achieving a clean and healthy
administration. It has been truly said that an open
Government is clean Government and a powerful safeguard
against political and administrative aberration and
"inefficiency."""
41. In the case of the Union of India vs. Association for
"Democratic Reforms, AIR 2002 SC 2112, while declaring that"
it is part of the fundamental right of citizens under Article
19(1)(a) to know the assets and liabilities of candidates
"contesting election to the Parliament or the State Legislatures,"
a three Judge Bench of this Court held unequivocally that:-
"""The right to get information in a democracy is recognized all"
throughout and is a natural right flowing from the concept of
"democracy (Para 56)."" Thereafter, legislation was passed"
37
"amending the Representation of People Act, 1951 that"
candidates need not provide such information. This Court in
"the case of PUCL vs. Union of India, (2003) 4 SCC 399,"
"struck down that legislation by stating: ""It should be properly"
understood that the fundamental rights enshrined in the
"Constitution such as, right to equality and freedoms have no"
"fixed contents. From time to time, this Court has filled in the"
skeleton with soul and blood and made it vibrant. Since the
"last more than 50 years, this Court has interpreted Articles"
"14, 19 and 21 and given meaning and colour so that the"
"nation can have a truly republic democratic society."""
"42. The RTI Act, 2005, as noted in its very preamble, does"
not create any new right but only provides machinery to
effectuate the fundamental right to information. The
institution of the CIC and the SICs are part of that machinery.
"The preamble also inter-alia states ""... democracy requires an"
informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to
38
hold Governments and their instrumentalities accountable to
"the governed."""
43. The submission of the RBI that exceptions be carved out
of the RTI Act regime in order to accommodate provisions of
RBI Act and Banking Regulation Act is clearly misconceived.
"RTI Act, 2005 contains a clear provision (Section 22) by virtue"
of which it overrides all other Acts including Official Secrets
"Act. Thus, notwithstanding anything to the contrary"
contained in any other law like RBI Act or Banking Regulation
"Act, the RTI Act, 2005 shall prevail insofar as transparency"
"and access to information is concerned. Moreover, the RTI Act"
"2005, being a later law, specifically brought in to usher"
transparency and to transform the way official business is
"conducted, would have to override all earlier practices and"
laws in order to achieve its objective. The only exceptions to
access to information are contained in RTI Act itself in
Section 8.
39
"44. In T.C.No.94 of 2015, the RTI applicant Mr. P.P. Kapoor"
had asked about the details of the loans taken by the
"industrialists that have not been repaid, and he had asked"
about the names of the top defaulters who have not repaid
their loans to public sector banks. The RBI resisted the
disclosure of the information claiming exemption under
Section 8(1) (a) and 8(1)(e) of the RTI Act on the ground that
"disclosure would affect the economic interest of the country,"
and that the information has been received by the RBI from
the banks in fiduciary capacity. The CIC found these
arguments made by RBI to be totally misconceived in facts and
"in law, and held that the disclosure would be in public"
interest.
"45. In T.C.No.95 of 2015, the RTI applicant therein Mr."
Subhash Chandra Agrawal had asked about the details of the
show cause notices and fines imposed by the RBI on various
banks. The RBI resisted the disclosure of the information
"claiming exemption under Section 8(1)(a),(d) and 8(1) (e) of the"
RTI Act on the ground that disclosure would affect the
40
"economic interest of the country, the competitive position of"
the banks and that the information has been received by RBI
"in fiduciary capacity. The CIC, herein also, found these"
arguments made by RBI to be totally misconceived in facts and
in law and held that the disclosure would be in public interest.
46. In reply to the submission of the petitioner about
"fiduciary relationship, learned counsel submitted that the"
scope of Section 8(1)(e) of the RTI Act has been decided by this
Court in Central Board of Secondary Education vs. Aditya
"Bandopadhyay, (2011) 8 SCC 497, wherein, while rejecting"
the argument that CBSE acts in a fiduciary capacity to the
"students, it was held that:"
"""...In a philosophical and very wide sense, examining bodies"
"can be said to act in a fiduciary capacity, with reference to"
"students who participate in an examination, as a"
Government does while governing its citizens or as the
present generation does with reference to the future
generation while preserving the environment. But the word
‘information available to a person in his fiduciary
relationship’ are used in Section 8(1) (e) of the RTI Act in its
"normal and well recognized sense, that is to refer to persons"
"who act in a fiduciary capacity, with reference to specific"
beneficiary or beneficiaries who are to be expected to be
"protected or benefited by the action of the fiduciary."""
41
47. We have extensively heard all the counsels appearing for
the petitioner Banks and respondents and examined the law
and the facts.
"48. While introducing the Right to Information Bill, 2004 a"
serious debate and discussion took place. The then Prime
Minister while addressing the House informed that the RTI Bill
is to provide for setting out practical regime of right to
"information for people, to secure access to information under"
the control of public authorities in order to promote
transparency and accountability in the working of every public
authority. The new legislation would radically alter the ethos
and culture of secrecy through ready sharing of information by
the State and its agencies with the people. An era of
transparency and accountability in governance is on the anvil.
"Information, and more appropriately access to information"
would empower and enable people not only to make informed
choices but also participate effectively in decision making
processes. Tracing the origin of the idea of the then Prime
"Minister who had stated, ""Modern societies are information"
42
societies. Citizens tend to get interested in all fields of life and
"demand information that is as comprehensive, accurate and"
"fair as possible."" In the Bill, reference has also been made to"
the decision of the Supreme Court to the effect that Right to
Information has been held as inherent in Article 19 of our
"Constitution, thereby, elevating it to a fundamental right of the"
"citizen. The Bill, which sought to create an effective"
"mechanism for easy exercise of this Right, was held to have"
"been properly titled as ""Right to Information Act"". The Bill"
further states that a citizen has to merely make a request to
the concerned Public Information Officer specifying the
particulars of the information sought by him. He is not
"required to give any reason for seeking information, or any"
other personal details except those necessary for contacting
"him. Further, the Bill states:-"
"""The categories of information exempted from"
disclosure are a bare minimum and are contained in
clause 8 of the Bill. Even these exemptions are not
absolute and access can be allowed to them in public
interest if disclosure of the information outweighs
the harm to the public authorities. Such disclosure
has been permitted even if it is in conflict with the
"provisions of the Official Secrets Act, 1923."
"Moreover, barring two categories that relate to"
information disclosure - which may affect
43
"sovereignty and integrity of India etc., or information"
relating to Cabinet papers etc.-all other categories of
exempted information would be disclosed after
twenty years.
There is another aspect about which information is
to be made public. We had a lengthy discussion and
it is correctly provided in the amendment under
clause 8 of the Bill. The following information shall
be exempted from disclosure which would
prejudicially affect the sovereignty and integrity of
India; which has been expressly forbidden; which
may result in a breach of privileges of Parliament or
the Legislature; and also information pertaining to
defence matters. They are listed in clause 8 (a) to (g).
There are exceptions to this clause. Where it is
considered necessary that the information will be
"divulged in the interest of the State, that will be"
done. There must be transparency in public life.
There must be transparency in administration and
people must have a right to know what has actually
transpired in the secretariat of the State as well as
the Union Ministry. A citizen will have a right
because it will be safe to prevent corruption. Many
things are done behind the curtain. Many shoddy
deals take place in the secretariats of the Central
and State Governments and the information will
always be kept hidden. Such practice should not be
allowed in a democratic country like ours. Ours is a
republic. The citizenry should have a right to know
what transpired in the secretariat. Even Cabinet
"papers, after a decision has been taken, must be"
divulged as per the provisions of this amendment. It
"cannot be hidden from the knowledge of others."""
"49. Addressing the House, it was pointed out by the then"
"Prime Minister that in our country, Government expenditure"
both at the Central and at the level of the States and local
"bodies, account for nearly 33% of our Gross National Product."
"At the same time, the socio-economic imperatives require our"
44
Government to intervene extensively in economic and social
"affairs. Therefore, the efficiency and effectiveness of the"
"government processes are critical variables, which will"
determine how our Government functions and to what extent
it is able to discharge the responsibilities entrusted. It was
pointed out that there are widespread complaints in our
"country about wastefulness of expenditure, about corruption,"
and matter which have relations with the functioning of the
"Government. Therefore, it was very important to explore new"
effective mechanism to ensure that the Government will
purposefully and effectively discharge the responsibilities
entrusted to it.
50. Finally the Right to Information Act was passed by the
"Parliament called ""The Right to Information Act, 2005"". The"
Preamble states:-
"""An Act to provide for setting out the practical"
regime of right to information for citizens to secure
access to information under the control of public
"authorities, in order to promote transparency and"
accountability in the working of every public
"authority, the constitution of a Central Information"
Commission and State Information Commissions and
for matters connected therewith or incidental
thereto.
45
WHEREAS the Constitution of India has
established democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of information
which are vital to its functioning and also to contain
corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in
actual practice is likely to conflict with other public
interests including efficient operations of the
"Governments, optimum use of limited fiscal"
resources and the preservation of confidentiality of
sensitive information;
AND WHEREAS it is necessary to harmonise
these conflicting interest while preserving the
paramountcy of the democratic ideal;
"NOW, THEREFORE, it is expedient to provide"
for furnishing certain information to citizens who
"desire to have it."""
51. Section 2 of the Act defines various authorities and the
words. Section 2(j) defines right to information as under :-
"""2(j) ""right to information"" means the right to"
information accessible under this Act which is held
by or under the control of any public authority and
includes the right to-
"(i) inspection of work, documents, records;"
"(ii) taking notes, extracts, or certified"
copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of
"diskettes, floppies, tapes, video"
cassettes or in any other electronic
mode or through printouts where such
information is stored in a computer or
"in any other device;"""
46
52. Section 3 provides that all citizens shall have the right to
information subject to the provisions of this Act. Section 4
makes it obligatory on all public authorities to maintain
records in the manner provided therein. According to Section
"6, a person who desires to obtain any information under the"
Act shall make a request in writing or through electronic
means in English or Hindi in the official language of the area
in which the application is being made to the competent
authority specifying the particulars of information sought by
him or her. Sub-section (ii) of Section 6 provides that the
applicant making request for information shall not be required
to give any reason for requesting the information or any other
personal details except those that may be necessary for
contacting him. Section 7 lays down the procedure for
disposal of the request so made by the person under Section 6
"of the Act. Section 8, however, provides certain exemption"
from disclosure of information. For better appreciation
Section 8 is quoted hereinbelow:-
47
"""8. Exemption from disclosure of information.--"
"(1) Notwithstanding anything contained in this Act,"
"there shall be no obligation to give any citizen,--"
"(a) information, disclosure of which would prejudicially"
"affect the sovereignty and integrity of India, the"
"security, strategic, scientific or economic interests of"
"the State, relation with foreign State or lead to"
incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
"(c) information, the disclosure of which would cause a"
breach of privilege of Parliament or the State
Legislature;
"(d) information including commercial confidence, trade"
"secrets or intellectual property, the disclosure of which"
"would harm the competitive position of a third party,"
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary
"relationship, unless the competent authority is"
satisfied that the larger public interest warrants the
disclosure of such information;
(f) information received in confidence from foreign
government;
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or
identify the source of information or assistance given
in confidence for law enforcement or security
purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
"the Council of Ministers, Secretaries and other officers:"
"Provided that the decisions of Council of Ministers, the"
"reasons thereof, and the material on the basis of which"
the decisions were taken shall be made public after the
"decision has been taken, and the matter is complete,"
or over: Provided further that those matters which
come under the exemptions specified in this section
shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has not relationship to any
48
"public activity or interest, or which would cause"
unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the
State Public Information Officer or the appellate
"authority, as the case may be, is satisfied that the"
larger public interest justifies the disclosure of such
"information: Provided that the information, which"
cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
"Act, 1923 (19 of 1923) nor any of the exemptions"
"permissible in accordance with sub-section (1), a"
"public authority may allow access to information, if"
public interest in disclosure outweighs the harm to the
protected interests.
"(3) Subject to the provisions of clauses (a), (c) and (i) of"
"sub-section (1), any information relating to any"
"occurrence, event or matter which has taken place,"
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section: Provided that where any question arises as to
the date from which the said period of twenty years
"has to be computed, the decision of the Central"
"Government shall be final, subject to the usual"
"appeals provided for in this Act."""
53. The information sought for by the respondents from the
petitioner-Bank have been denied mainly on the ground that
such information is exempted from disclosure under Section
8(1)(a)(d) and (e) of the RTI Act.
54. Learned counsel appearing for the petitioner-Bank
mainly relied upon Section 8(1)(e) of the RTI Act taking the
49
stand that the Reserve Bank of India having fiduciary
relationship with the other banks and that there is no reason
to disclose such information as no larger public interest
"warrants such disclosure. The primary question therefore, is,"
whether the Reserve Bank of India has rightly refused to
disclose information on the ground of its fiduciary relationship
with the banks.
"55. The Advanced Law Lexicon, 3rd Edition, 2005, defines"
"fiduciary relationship as ""a relationship in which one person is"
under a duty to act for the benefit of the other on the matters
within the scope of the fiduciary relationship. Fiduciary
relationship usually arise in one of the four situations (1)
when one person places trust in the faithful integrity of
"another, who as a result gains superiority or influence over the"
"first, (2) when one person assumes control and responsibility"
"over another, (3) when one person has a duty to act or give"
advice to another on matters falling within the scope of the
"relationship, or (4) when there is specific relationship that has"
50
"traditionally be recognized as involving fiduciary duties, as"
"with a lawyer and a client, or a stockbroker and a customer."""
56. The scope of the fiduciary relationship consists of the
following rules:
"""(i) No Conflict rule- A fiduciary must not place"
himself in a position where his own interests conflicts
with that of his customer or the beneficiary. There
"must be ""real sensible possibility of conflict."
(ii) No profit rule- a fiduciary must not profit from
"his position at the expense of his customer, the"
beneficiary;
(iii) Undivided loyalty rule- a fiduciary owes
"undivided loyalty to the beneficiary, not to place"
himself in a position where his duty towards one
person conflicts with a duty that he owes to another
customer. A consequence of this duty is that a
fiduciary must make available to a customer all the
information that is relevant to the customer’s affairs
(iv) Duty of confidentiality- a fiduciary must only
use information obtained in confidence and must not
"use it for his own advantage, or for the benefit of"
"another person."""
57. The term fiduciary relationship has been well discussed
by this Court in the case of Central Board of Secondary
Education and Anr. vs. Aditya Bandopadhyay and Ors.
"(supra). In the said decision, their Lordships referred various"
authorities to ascertain the meaning of the term fiduciary
relationship and observed thus:-
51
"""20.1) Black’s Law Dictionary (7th Edition, Page 640)"
defines ‘fiduciary relationship’ thus:
"""A relationship in which one person is under a duty to"
act for the benefit of the other on matters within the
scope of the relationship. Fiduciary relationships -
"such as trustee-beneficiary, guardian-ward,"
"agent-principal, and attorney-client - require the"
highest duty of care. Fiduciary relationships usually
arise in one of four situations : (1) when one person
"places trust in the faithful integrity of another, who as"
"a result gains superiority or influence over the first, (2)"
when one person assumes control and responsibility
"over another, (3) when one person has a duty to act for"
or give advice to another on matters falling within the
"scope of the relationship, or (4) when there is a specific"
relationship that has traditionally been recognized as
"involving fiduciary duties, as with a lawyer and a client"
"or a stockbroker and a customer."""
20.2) The American Restatements (Trusts and Agency)
define ‘fiduciary’ as one whose intention is to act for
the benefit of another as to matters relevant to the
relation between them. The Corpus Juris Secundum
(Vol. 36A page 381) attempts to define fiduciary thus :
"""A general definition of the word which is sufficiently"
comprehensive to embrace all cases cannot well be
"given. The term is derived from the civil, or Roman, law."
"It connotes the idea of trust or confidence,"
"contemplates good faith, rather than legal obligation, as"
"the basis of the transaction, refers to the integrity, the"
"fidelity, of the party trusted, rather than his credit or"
"ability, and has been held to apply to all persons who"
"occupy a position of peculiar confidence toward others,"
and to include those informal relations which exist
"whenever one party trusts and relies on another, as"
well as technical fiduciary relations.
"The word ‘fiduciary,’ as a noun, means one who holds a"
"thing in trust for another, a trustee, a person holding"
"the character of a trustee, or a character analogous to"
"that of a trustee, with respect to the trust and"
confidence involved in it and the scrupulous good faith
"and candor which it requires; a person having the duty,"
"created by his undertaking, to act primarily for"
52
another’s benefit in matters connected with such
"undertaking. Also more specifically, in a statute, a"
"guardian, trustee, executor, administrator, receiver,"
"conservator, or any person acting in any fiduciary"
"capacity for any person, trust, or estate. Some"
"examples of what, in particular connections, the term"
has been held to include and not to include are set out
"in the note."""
"20.3) Words and Phrases, Permanent Edition (Vol. 16A,"
Page 41) defines ‘fiducial relation’ thus :
"""There is a technical distinction between a ‘fiducial"
relation’ which is more correctly applicable to legal
"relationships between parties, such as guardian and"
"ward, administrator and heirs, and other similar"
"relationships, and ‘confidential relation’ which includes"
"the legal relationships, and also every other"
relationship wherein confidence is rightly reposed and
is exercised.
"Generally, the term ‘fiduciary’ applies to any person"
who occupies a position of peculiar confidence towards
another. It refers to integrity and fidelity. It
"contemplates fair dealing and good faith, rather than"
"legal obligation, as the basis of the transaction. The"
term includes those informal relations which exist
"whenever one party trusts and relies upon another, as"
"well as technical fiduciary relations."""
20.4) In Bristol and West Building Society vs. Mothew
[1998 Ch. 1] the term fiduciary was defined thus :
"""A fiduciary is someone who has undertaken to act for"
and on behalf of another in a particular matter in
circumstances which give rise to a relationship of trust
and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty..... A fiduciary must
act in good faith; he must not make a profit out of his
trust; he must not place himself in a position where his
duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without
"the informed consent of his principal."""
53
20.5) In Wolf vs. Superior Court [2003 (107) California
"Appeals, 4th 25] the California Court of Appeals defined"
fiduciary relationship as under :
"""any relationship existing between the parties to the"
transaction where one of the parties is duty bound to
act with utmost good faith for the benefit of the other
party. Such a relationship ordinarily arises where
confidence is reposed by one person in the integrity of
"another, and in such a relation the party in whom the"
"confidence is reposed, if he voluntarily accepts or"
"assumes to accept the confidence, can take no"
advantage from his acts relating to the interests of the
other party without the latter’s knowledge and
"consent."""
21. The term ‘fiduciary’ refers to a person having a duty
"to act for the benefit of another, showing good faith and"
"condour, where such other person reposes trust and"
special confidence in the person owing or discharging
the duty. The term ‘fiduciary relationship’ is used to
describe a situation or transaction where one person
(beneficiary) places complete confidence in another
"person (fiduciary) in regard to his affairs, business or"
transaction/s. The term also refers to a person who
holds a thing in trust for another (beneficiary). The
fiduciary is expected to act in confidence and for the
"benefit and advantage of the beneficiary, and use good"
faith and fairness in dealing with the beneficiary or the
things belonging to the beneficiary. If the beneficiary
"has entrusted anything to the fiduciary, to hold the"
thing in trust or to execute certain acts in regard to or
"with reference to the entrusted thing, the fiduciary has"
to act in confidence and expected not to disclose the
thing or information to any third party. There are also
certain relationships where both the parties have to act
in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-‘-vis
another partner and an employer vis-‘-vis employee.
An employee who comes into possession of business or
trade secrets or confidential information relating to the
"employer in the course of his employment, is expected"
to act as a fiduciary and cannot disclose it to others.
"Similarly, if on the request of the employer or official"
"superior or the head of a department, an employee"
54
"furnishes his personal details and information, to be"
"retained in confidence, the employer, the official"
superior or departmental head is expected to hold such
"personal information in confidence as a fiduciary, to be"
made use of or disclosed only if the employee’s conduct
"or acts are found to be prejudicial to the employer."""
"58. In the instant case, the RBI does not place itself in a"
"fiduciary relationship with the Financial institutions (though,"
"in word it puts itself to be in that position) because, the"
"reports of the inspections, statements of the bank, information"
related to the business obtained by the RBI are not under the
pretext of confidence or trust. In this case neither the RBI nor
the Banks act in the interest of each other. By attaching an
"additional ""fiduciary"" label to the statutory duty, the"
Regulatory authorities have intentionally or unintentionally
created an in terrorem effect.
59. RBI is a statutory body set up by the RBI Act as India’s
Central Bank. It is a statutory regulatory authority to oversee
the functioning of the banks and the country’s banking sector.
"Under Section 35A of the Banking Regulation Act, RBI has"
been given powers to issue any direction to the banks in
55
"public interest, in the interest of banking policy and to secure"
proper management of a banking company. It has several
other far-reaching statutory powers.
60. RBI is supposed to uphold public interest and not the
interest of individual banks. RBI is clearly not in any fiduciary
relationship with any bank. RBI has no legal duty to
maximize the benefit of any public sector or private sector
"bank, and thus there is no relationship of ‘trust’ between"
them. RBI has a statutory duty to uphold the interest of the
"public at large, the depositors, the country’s economy and the"
"banking sector. Thus, RBI ought to act with transparency and"
not hide information that might embarrass individual banks.
It is duty bound to comply with the provisions of the RTI Act
and disclose the information sought by the respondents
herein.
61. The baseless and unsubstantiated argument of the RBI
that the disclosure would hurt the economic interest of the
"country is totally misconceived. In the impugned order, the"
CIC has given several reasons to state why the disclosure of
56
the information sought by the respondents would hugely serve
"public interest, and non-disclosure would be significantly"
detrimental to public interest and not in the economic interest
"of India. RBI’s argument that if people, who are sovereign, are"
made aware of the irregularities being committed by the banks
"then the country’s economic security would be endangered, is"
not only absurd but is equally misconceived and baseless.
62. The exemption contained in Section 8(1)(e) applies to
exceptional cases and only with regard to certain pieces of
"information, for which disclosure is unwarranted or"
undesirable. If information is available with a regulatory
"agency not in fiduciary relationship, there is no reason to"
"withhold the disclosure of the same. However, where"
information is required by mandate of law to be provided to an
"authority, it cannot be said that such information is being"
"provided in a fiduciary relationship. As in the instant case,"
the Financial institutions have an obligation to provide all the
information to the RBI and such an information shared under
an obligation/ duty cannot be considered to come under the
57
purview of being shared in fiduciary relationship. One of the
"main characteristic of a Fiduciary relationship is ""Trust and"
"Confidence"". Something that RBI and the Banks lack between"
them.
"63. In the present case, we have to weigh between the public"
interest and fiduciary relationship (which is being shared
"between the RBI and the Banks). Since, RTI Act is enacted to"
"empower the common people, the test to determine limits of"
Section 8 of RTI Act is whether giving information to the
general public would be detrimental to the economic interests
of the country? To what extent the public should be allowed to
get information?
"64. In the context of above questions, it had long since come"
to our attention that the Public Information Officers (PIO)
under the guise of one of the exceptions given under Section 8
"of RTI Act, have evaded the general public from getting their"
hands on the rightful information that they are entitled to.
58
65. And in this case the RBI and the Banks have sidestepped
the General public’s demand to give the requisite information
"on the pretext of ""Fiduciary relationship"" and ""Economic"
"Interest"". This attitude of the RBI will only attract more"
suspicion and disbelief in them. RBI as a regulatory authority
should work to make the Banks accountable to their actions.
"66. Furthermore, the RTI Act under Section 2(f) clearly"
"provides that the inspection reports, documents etc. fall under"
"the purview of ""Information"" which is obtained by the public"
"authority (RBI) from a private body. Section 2(f), reads thus:"
"""information"" means any material in any form,"
"including records, documents, memos, e-mails,"
"opinions, advices, press releases, circulars,"
"orders, logbooks, contracts, reports, papers,"
"samples, models, data material held in any"
electronic form and information relating to any
private body which can be accessed by a public
authority under any other law for the time being
in force;
67. From reading of the above section it can be inferred that
the Legislature’s intent was to make available to the general
public such information which had been obtained by the
public authorities from the private body. Had it been the case
59
where only information related to public authorities was to be
"provided, the Legislature would not have included the word"
"""private body"". As in this case, the RBI is liable to provide"
information regarding inspection report and other documents
to the general public.
68. Even if we were to consider that RBI and the Financial
"Institutions shared a ""Fiduciary Relationship"", Section 2(f)"
would still make the information shared between them to be
accessible by the public. The facts reveal that Banks are trying
"to cover up their underhand actions, they are even more liable"
to be subjected to public scrutiny.
69. We have surmised that many Financial Institutions have
resorted to such acts which are neither clean nor transparent.
The RBI in association with them has been trying to cover up
their acts from public scrutiny. It is the responsibility of the
RBI to take rigid action against those Banks which have been
practicing disreputable business practices.
60
70. From the past we have also come across financial
institutions which have tried to defraud the public. These acts
are neither in the best interests of the Country nor in the
"interests of citizens. To our surprise, the RBI as a Watch Dog"
should have been more dedicated towards disclosing
information to the general public under the Right to
Information Act.
"71. We also understand that the RBI cannot be put in a fix,"
"by making it accountable to every action taken by it. However,"
in the instant case the RBI is accountable and as such it has
to provide information to the information seekers under
"Section 10(1) of the RTI Act, which reads as under:"
"""Section 10(1) Severability --Where a request"
for access to information is rejected on the
ground that it is in relation to information which
"is exempt from disclosure, then,"
"notwithstanding anything contained in this Act,"
access may be provided to that part of the record
which does not contain any information which is
exempt from disclosure under this Act and
which can reasonably be severed from any part
"that contains exempt information."""
72. It was also contended by learned senior counsel for the
RBI that disclosure of information sought for will also go
61
against the economic interest of the nation. The submission
is wholly misconceived.
73. Economic interest of a nation in most common parlance
are the goals which a nation wants to attain to fulfil its
"national objectives. It is the part of our national interest,"
meaning thereby national interest can’t be seen with the
spectacles(glasses) devoid of economic interest.
74. It includes in its ambit a wide range of economic
transactions or economic activities necessary and beneficial to
"attain the goals of a nation, which definitely includes as an"
objective economic empowerment of its citizens. It has been
recognized and understood without any doubt now that one of
the tool to attain this goal is to make information available to
people. Because an informed citizen has the capacity to
reasoned action and also to evaluate the actions of the
"legislature and executives, which is very important in a"
participative democracy and this will serve the nation’s
interest better which as stated above also includes its
62
economic interests. Recognizing the significance of this tool it
has not only been made one of the fundamental rights under
Article 19 of the Constitution but also a Central Act has been
brought into effect on 12th October 2005 as the Right to
"Information Act, 2005."
75. The ideal of ‘Government by the people’ makes it
necessary that people have access to information on matters of
public concern. The free flow of information about affairs of
Government paves way for debate in public policy and fosters
accountability in Government. It creates a condition for ‘open
governance’ which is a foundation of democracy.
76. But neither the Fundamental Rights nor the Right to
Information have been provided in absolute terms. The
fundamental rights guaranteed under Article 19 Clause 1(a)
are restricted under Article 19 clause 2 on the grounds of
"national and societal interest. Similarly Section 8, clause 1 of"
"Right to Information Act, 2005, contains the exemption"
provisions where right to information can be denied to public
"in the name of national security and sovereignty, national"
63
"economic interests, relations with foreign states etc. Thus, not"
all the information that the Government generates will or shall
be given out to the public. It is true that gone are the days of
closed doors policy making and they are not acceptable also
but it is equally true that there are some information which if
"published or released publicly, they might actually cause more"
harm than good to our national interest... if not domestically it
can make the national interests vulnerable internationally and
it is more so possible with the dividing line between national
and international boundaries getting blurred in this age of
rapid advancement of science and technology and global
economy. It has to be understood that rights can be enjoyed
without any inhibition only when they are nurtured within
protective boundaries. Any excessive use of these rights which
may lead to tampering these boundaries will not further the
national interest. And when it comes to national economic
"interest, disclosure of information about currency or exchange"
"rates, interest rates, taxes, the regulation or supervision of"
"banking, insurance and other financial institutions, proposals"
64
for expenditure or borrowing and foreign investment could in
"some cases harm the national economy, particularly if"
"released prematurely. However, lower level economic and"
"financial information, like contracts and departmental budgets"
should not be withheld under this exemption. This makes it
necessary to think when or at what stage an information is to
"be provided i.e., the appropriate time of providing the"
information which will depend on nature of information sought
for and the consequences it will lead to after coming in public
domain.
"77. In one of the case, the respondent S.S. Vohra sought"
certain information in relation to the Patna Branch of ICICI
Bank and advisory issued to the Hong Kong Branch of ICICI
Bank. The contention of the respondent was that the Finance
Minister had made a written statement on the floor of the
"House on 24.07.2009 that some banks like SBI, ICICI, Bank of"
"Baroda, Dena Bank etc., were violating FEMA Guidelines for"
opening of accounts and categorically mentioned that the
Patna Branch of ICICI Bank Ltd. had opened some fictitious
65
accounts which were opened by fraudsters and hence an
advisory note was issued to the concerned branch on
December 2007 for its irregularities. The Finance Minister
even mentioned that in the year 2008 the ICICI Bank Ltd. was
also warned for alleged irregular dealings in securities in Hong
"Kong. Hence, the respondent sought such advisory note as"
issued by the RBI to ICICI Bank. The Central Information
Commissioner in the impugned order considered the RBI
Master Circular dated 01.07.2009 to all the commercial banks
giving various directions and finally held as under :-
"""It has been contended by the Counsel on behalf of"
the ICICI Bank Limited that an advisory note is prepared
"after reliance on documents such as Inspection Reports,"
"Scrutiny reports etc. and hence, will contain the contents of"
those documents too which are otherwise exempt from
disclosure. We have already expressed our view in express
terms that whether or not an Advisory Note shall be
disclosed under the RTI Act will have to be determined on
"case by case basis. In some other case, for example, there"
may be a situation where some contents of the Advisory
Note may have to be severed to such an extent that details
of Inspection Reports etc. can be separated from the Note
and then be provided to the RTI Applicant. Section 10 of
the RTI Act leaves it open to decide each case on its merits
after having satisfied ourselves whether an Advisory Note
needs to be provided as it is or whether some of its contents
may be severed since they may be exempted per se under
"the RTI Act. However, we find no reason, whatsoever, to"
apply Section 10 of the RTI Act in order to severe the
contents of the Advisory Note issued by the RBI to the ICICI
Bank Limited as the matter has already been placed on the
floor of the Lok Sabha by the Hon’ble Finance Minister.
66
This is a matter of concern since it involves the
violation of policy Guidelines initiated by the RBI and
affects the public at large. Transparency cannot be brought
overnight in any system and one can hope to witness
accountability in a system only when its end users are
"well-educated, well-informed and well-aware. If the"
customers of commercial banks will remain oblivious to the
violations of RBI Guidelines and standards which such
"banks regularly commit, then eventually the whole financial"
system of the country would be at a monumental loss. This
can only be prevented by suo motu disclosure of such
information as the penalty orders are already in public
"domain."""
"78. Similarly, in another case the respondent Jayantilal N."
"Mistry sought information from the CPIO, RBI in respect of a"
Cooperative Bank viz. Saraspur Nagrik Sahkari Bank Limited
"related to inspection report, which was denied by the CPIO on"
the ground that the information contained therein were
received by RBI in a fiduciary capacity and are exempt under
Section 8(1)(e) of RTI Act. The CIC directed the petitioner to
furnish that information since the RBI expressed their
willingness to disclose a summary of substantive part of the
inspection report to the respondent. While disposing of the
appeal the CIC observed:-
"""Before parting with this appeal, we would like to"
record our observations that in a rapidly unfolding
"economics scenario, there are public institutions, both"
"in the banking and non-banking sector, whose"
activities have not served public interest. On the
67
"contrary, some such institutions may have attempted"
to defraud the public of their moneys kept with such
institutions in trust. RBI being the Central Bank is
one of the instrumentalities available to the public
which as a regulator can inspect such institutions and
initiate remedial measures where necessary. It is
"important that the general public, particularly, the"
share holders and the depositors of such institutions
are kept aware of RBI’s appraisal of the functioning of
such institutions and taken into confidence about the
remedial actions initiated in specific cases. This will
serve the public interest. The RBI would therefore be
well advised to be proactive in disclosing information
to the public in general and the information seekers
"under the RTI Act, in particular. The provisions of"
Section 10(1) of the RTI Act can therefore be
judiciously used when necessary to adhere to this
"objective."""
"79. In another case, where the respondent P.P. Kapoor"
sought information inter alia about the details of default in
"loans taken from public sector banks by industrialists, out of"
"the list of defaulters, top 100 defaulters, names of the"
"businessmen, firm name, principal amount, interest amount,"
date of default and date of availing the loan etc. The said
information was denied by the CPIO mainly on the basis that
it was held in fiduciary capacity and was exempt from
"disclosure of such information. Allowing the appeal, the CIC"
directed for the disclosure of such information. The CIC in the
impugned order has rightly observed as under:-
68
"""I wish government and its instrumentalities"
would remember that all information held by
"them is owned by citizens, who are sovereign."
"Further, it is often seen that banks and financial"
institutions continue to provide loans to
industrialists despite their default in repayment
"of an earlier loan."" This Court in UP Financial"
"Corporation vs. Gem Cap India Pvt. Ltd., AIR"
1993 SC 1435 has noted that :
"""Promoting industrialization at the cost of"
public funds does not serve the public
"interest, it merely amounts to transferring"
public money to private account’. Such
practices have led citizens to believe that
defaulters can get away and play fraud on
public funds. There is no doubt that
information regarding top industrialists
who have defaulted in repayment of loans
must be brought to citizens’ knowledge;
there is certainly a larger public interest
that could be served on ....disclosure of
"the same. In fact, information about"
industrialists who are loan defaulters of
the country may put pressure on such
persons to pay their dues. This would
have the impact of alerting Citizens about
those who are defaulting in payments and
could also have some impact in shaming
them.
RBI had by its Circular DBOD No.
"BC/CIS/47/20.16.002/94 dated April 23, 1994"
directed all banks to send a report on their
"defaulters, which it would share with all banks"
"and financial institutions, with the following"
objectives:
1) To alert banks and financial institutions (FIs)
and to put them on guard against borrowers
who have defaulted in their dues to lending
institutions;
2) To make public the names of the borrowers
who have defaulted and against whom suits
"have been filed by banks/ FIs."""
69
"80. At this juncture, we may refer the decision of this Court"
"in Mardia Chemicals Limited vs. Union of India, (2004) 4"
"SCC 311, wherein this court while considering the validity of"
SARFAESI Act and recovery of non-performing assets by
"banks and financial institutions in India, held :-"
""".............it may be observed that though the"
transaction may have a character of a private
contract yet the question of great importance behind
such transactions as a whole having far reaching
effect on the economy of the country cannot be
"ignored, purely restricting it to individual"
transactions more particularly when financing is
through banks and financial institutions utilizing the
"money of the people in general namely, the"
depositors in the banks and public money at the
"disposal of the financial institutions. Therefore,"
wherever public interest to such a large extent is
involved and it may become necessary to achieve an
"object which serves the public purposes, individual"
rights may have to give way. Public interest has
always been considered to be above the private
"interest. Interest of an individual may, to some"
"extent, be affected but it cannot have the potential of"
taking over the public interest having an impact in
"the socio- economic drive of the country..........."""
81. In rest of the cases the CIC has considered elaborately
the information sought for and passed orders which in our
"opinion do not suffer from any error of law, irrationality or"
arbitrariness.
70
"82. We have, therefore, given our anxious consideration to"
the matter and came to the conclusion that the Central
Information Commissioner has passed the impugned orders
"giving valid reasons and the said orders, therefore, need no"
interference by this Court.
83. There is no merit in all these cases and hence they are
dismissed.
..................................J.
(M.Y. Eqbal)
..................................J.
(C. Nagappan )
New Delhi
"December 16, 2015"
71
ITEM NO.1A COURT NO.9 SECTION XVIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Transfer Case (Civil) No.91/2015 @ T.P.(C) No.707/2012
RESERVE BANK OF INDIA Petitioner(s)
VERSUS
JAYANTILAL N. MISTRY Respondent(s)
WITH T.C.(C) No.92/2015 @ T.P.(C) No.708/2012
T.C.(C) No. 93/2015 @ T.P.(C) No.711/2012
T.C.(C) No. 94/2015 @ T.P.(C) No.712/2012
T.C.(C) No. 95/2015 @ T.P.(C) No.713/2012
T.C.(C) No. 96/2015 @ T.P.(C) No.715/2012
T.C.(C) No. 97/2015 @ T.P.(C) No.716/2012
T.C.(C) No. 98/2015 @ T.P.(C) No.717/2012
T.C.(C) No. 99/2015 @ T.P.(C) No.718/2012
T.C.(C) No. 100/2015 @ T.P.(C) No.709/2012
T.C.(C) No. 101/2015 @ T.P.(C) No.714/2012
Date : 16/12/2015 These Cases were called on for
pronouncement of Judgment today.
"For Petitioner(s) Mr. T. R. Andhyarujina, Sr. Adv."
"Mr. Kuldeep S. Parihar, Adv."
"Mr. H. S. Parihar,Adv."
"Mr. Soumik Gitosal, Adv."
"Mr. Siddharth Sijoria, Adv."
"Mr. P. Narasimhan,Adv."
"Mr. Bharat Sangal,Adv."
"For Respondent(s) Dr. Lalit Bhasin, Adv."
"Ms. Nina Gupta, Adv."
"Mr. Mudit Sharma,Adv."
72
"Mr. Prashant Bhushan,Adv."
"Mr. H. S. Parihar,Adv."
"Ms. Jyoti Mendiratta,Adv."
"Mr. K.R. Anand, Adv."
"Mr. Vivek Gupta,Adv."
"Ms. Manisha T. Karia,Adv."
"Ms. Srishti Rani, Adv."
"Mr. Rakesh K. Sharma,Adv."
"Mr. Amol B. Karande, Adv."
Hon’ble Mr. Justice M. Y. Eqbal pronounced the
reportable Judgment of the Bench comprising of His Lordship
and Hon’ble Mr. Justice C. Nagappan.
These transferred Cases are dismissed in terms of the
signed reportable judgment.
(Sanjay Kumar-II) (Indu Pokhriyal)
Court Master Court Master
(Signed Order is placed on the file)
73
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. … Appellants
Vs.
Aditya Bandopadhyay & Ors. … Respondents
With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)
J U D G M E N T
"R.V.RAVEENDRAN, J."
"Leave granted. For convenience, we will refer to the facts of the first"
case.
"2. The first respondent appeared for the Secondary School Examination,"
2008 conducted by the Central Board of Secondary Education (for short
2
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed
with his marks. He thought that he had done well in the examination but his
answer-books were not properly valued and that improper valuation had
resulted in low marks. Therefore he made an application for inspection and
re-evaluation of his answer-books. CBSE rejected the said request by letter
dated 12.7.2008. The reasons for rejection were:
(i) The information sought was exempted under Section 8(1)(e) of RTI
Act since CBSE shared fiduciary relationship with its evaluators and
maintain confidentiality of both manner and method of evaluation.
(ii) The Examination Bye-laws of the Board provided that no candidate
shall claim or is entitled to re-evaluation of his answers or disclosure
or inspection of answer book(s) or other documents.
(iii) The larger public interest does not warrant the disclosure of such
information sought.
"(iv) The Central Information Commission, by its order dated 23.4.2007 in"
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such
disclosure.”
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008
before the Calcutta High Court and sought the following reliefs : (a) for a
declaration that the action of CBSE in excluding the provision of re-
"evaluation of answer-sheets, in regard to the examinations held by it was"
"illegal, unreasonable and violative of the provisions of the Constitution of"
3
India; (b) for a direction to CBSE to appoint an independent examiner for re-
evaluating his answer-books and issue a fresh marks card on the basis of re-
evaluation; (c) for a direction to CBSE to produce his answer-books in
regard to the 2008 Secondary School Examination so that they could be
properly reviewed and fresh marks card can be issued with re-evaluation
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and
for a direction to produce the answer-books into court for inspection by the
first respondent. The respondent contended that section 8(1)(e) of Right to
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not"
applicable and relied upon the provisions of the RTI Act to claim inspection.
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-"
evaluation and inspection of answer-books were impermissible and what
was permissible was only verification of marks. They relied upon the CBSE
"Examination Bye-law No.61, relevant portions of which are extracted"
below:
“61. Verification of marks obtained by a Candidate in a subject
(i) A candidate who has appeared at an examination conducted by the
Board may apply to the concerned Regional Officer of the Board for
verification of marks in any particular subject. The verification will be
restricted to checking whether all the answer's have been evaluated and
that there has been no mistake in the totalling of marks for each question
in that subject and that the marks have been transferred correctly on the
title page of the answer book and to the award list and whether the
4
supplementary answer book(s) attached with the answer book mentioned
by the candidate are intact. No revaluation of the answer book or
supplementary answer book(s) shall be done.
(ii) Such an application must be made by the candidate within 21 days
from the date of the declaration of result for Main Examination and 15
days for Compartment Examination.
(iii) All such applications must be accompanied by payment of fee as
prescribed by the Board from time to time.
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her"
answers or disclosure or inspection of the answer book(s) or other
documents.
xxxx
(vi) In no case the verification of marks shall be done in the presence of
"the candidate or anyone else on his/her behalf, nor will the answer books"
be shown to him/her or his/her representative.
(vii) Verification of marks obtained by a candidate will be done by the
officials appointed by or with the approval of the Chairman.
"(viii) The marks, on verification will be revised upward or downward, as"
per the actual marks obtained by the candidate in his/her answer book.
xxxx
62. Maintenance of Answer Books
The answer books shall be maintained for a period of three months and
shall thereafter be disposed of in the manner as decided by the Chairman
from time to time.”
(emphasis supplied)
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated
schools across the country appear in class X and class XII examinations
conducted by it and this generates as many as 60 to 65 lakhs of answer-
"books; that as per Examination Bye-law No.62, it maintains the answer"
5
books only for a period of three months after which they are disposed of. It
was submitted that if candidates were to be permitted to seek re-evaluation
"of answer books or inspection thereof, it will create confusion and chaos,"
subjecting its elaborate system of examinations to delay and disarray. It was
"stated that apart from class X and class XII examinations, CBSE also"
conducts several other examinations (including the All India Pre-Medical
"Test, All India Engineering Entrance Examination and Jawahar Navodaya"
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the
answer-books or grant inspection of answer-books or grant certified copies
"thereof, it would interfere with its effective and efficient functioning, and"
will also require huge additional staff and infrastructure. It was submitted
that the entire examination system and evaluation by CBSE is done in a
scientific and systemic manner designed to ensure and safeguard the high
academic standards and at each level utmost care was taken to achieve the
"object of excellence, keeping in view the interests of the students. CBSE"
referred to the following elaborate procedure for evaluation adopted by it :
“The examination papers are set by the teachers with at least 20 years of
teaching experience and proven integrity. Paper setters are normally
appointed from amongst academicians recommended by then Committee
of courses of the Board. Every paper setter is asked to set more than one
set of question papers which are moderated by a team of moderators who
are appointed from the academicians of the University or from amongst
the Senior Principals. The function of the moderation team is to ensure
correctness and consistency of different sets of question papers with the
curriculum and to assess the difficulty level to cater to the students of
6
different schools in different categories. After assessing the papers from
"every point of view, the team of moderators gives a declaration whether"
"the whole syllabus is covered by a set of question papers, whether the"
distribution of difficulty level of all the sets is parallel and various other
aspects to ensure uniform standard. The Board also issues detailed
instructions for the guidance of the moderators in order to ensure uniform
criteria for assessment.
The evaluation system on the whole is well organized and fool-proof. All
the candidates are examined through question papers set by the same
paper setters. Their answer books are marked with fictitious roll numbers
so as to conceal their identity. The work of allotment of fictitious roll
number is carried out by a team working under a Chief Secrecy Officer
having full autonomy. The Chief Secrecy Officer and his team of
assistants are academicians drawn from the Universities and other
autonomous educational bodies not connected with the Board. The Chief
Secrecy Officer himself is usually a person of the rank of a University
professor. No official of the Board at the Central or Regional level is
associated with him in performance of the task assigned to him. The codes
of fictitious roll numbers and their sequences are generated by the Chief
Secrecy Officer himself on the basis of mathematical formula which
randomize the real roll numbers and are known only to him and his team.
This ensures complete secrecy about the identification of the answer book
"so much so, that even the Chairman, of the Board and the Controller of"
Examination of the Board do not have any information regarding the
fictitious roll numbers granted by the Chief Secrecy Officer and their real
counterpart numbers.
"At the evaluation stage, the Board ensures complete fairness and"
uniformity by providing a marking scheme which is uniformity applicable
to all the examiners in order to eliminate the chances of subjectivity.
These marking schemes are jointly prepared at the Headquarters of the
Board in Delhi by the Subject Experts of all the regions. The main purpose
of the marking scheme is to maintain uniformity in the evaluation of the
answer books.
The evaluation of the answer books in all major subjects including
"mathematics, science subjects is done in centralized “on the spot”"
evaluation centers where the examiners get answer book in interrupted
"serial orders. Also, the answer books are jumbled together as a result of"
"which the examiners, say in Bangalore may be marking the answer book"
"of a candidate who had his examination in Pondicherry, Goa, Andaman"
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka"
itself but he has no way of knowing exactly which answer book he is
examining. The answer books having been marked with fictitious roll
numbers give no clue to any examiner about the state or territory it
7
belongs to. It cannot give any clue about the candidate’s school or centre
of examination. The examiner cannot have any inclination to do any
favour to a candidate because he is unable to decodify his roll number or
"to know as to which school, place or state or territory he belongs to."
The examiners check all the questions in the papers thoroughly under the
supervision of head examiner and award marks to the sub parts
individually not collectively. They take full precautions and due attention
is given while assessing an answer book to do justice to the candidate. Re-
evaluation is administratively impossible to be allowed in a Board where
lakhs of students take examination in multiple subjects.
There are strict instructions to the additional head examiners not to allow
any shoddy work in evaluation and not to issue more than 20-25 answer
books for evaluation to an examiner on a single day. The examiners are
practicing teachers who guard the interest of the candidates. There is no
ground to believe that they do unjust marking and deny the candidates
their due. It is true that in some cases totaling errors have been detected at
the stage of scrutiny or verification of marks. In order to minimize such
"errors and to further strengthen and to improve its system, from 1993"
checking of totals and other aspects of the answers has been trebled in
order to detect and eliminate all lurking errors.
The results of all the candidates are reviewed by the Results Committee
functioning at the Head Quarters. The Regional Officers are not the
number of this Committee. This Committee reviews the results of all the
regions and in case it decides to standardize the results in view of the
"results shown by the regions over the previous years, it adopts a uniform"
policy for the candidates of all the regions. No special policy is adopted
"for any region, unless there are some special reasons. This practice of"
awarding standardized marks in order to moderate the overall results is a
practice common to most of the Boards of Secondary Education. The
exact number of marks awarded for the purpose of standardization in
different subjects varies from year to year. The system is extremely
impersonalized and has no room for collusion infringement. It is in a word
a scientific system.”
CBSE submitted that the procedure evolved and adopted by it ensures
fairness and accuracy in evaluation of answer-books and made the entire
process as foolproof as possible and therefore denial of re-evaluation or
8
inspection or grant of copies cannot be considered to be denial of fair play or
unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed of the said
writ petition along with the connected writ petitions (relied by West Bengal
Board of Secondary Education and others) by a common judgment dated
5.2.2009. The High Court held that the evaluated answer-books of an
examinee writing a public examination conducted by statutory bodies like
"CBSE or any University or Board of Secondary Education, being a"
"‘document, manuscript record, and opinion’ fell within the definition of"
“information” as defined in section 2(f) of the RTI Act. It held that the
provisions of the RTI Act should be interpreted in a manner which would
lead towards dissemination of information rather than withholding the same;
"and in view of the right to information, the examining bodies were bound to"
provide inspection of evaluated answer books to the examinees.
Consequently it directed CBSE to grant inspection of the answer books to
the examinees who sought information. The High Court however rejected
"the prayer made by the examinees for re-evaluation of the answer-books, as"
that was not a relief that was available under RTI Act. RTI Act only
"provided a right to access information, but not for any consequential reliefs."
9
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this"
appeal by special leave.
6. Before us the CBSE contended that the High Court erred in (i)
"directing CBSE to permit inspection of the evaluated answer books, as that"
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),"
which provided that no candidate shall claim or be entitled to re-evaluation
of answer books or disclosure/inspection of answer books; (ii) holding that
"Bye-law 61(4) was not binding upon the examinees, in view of the"
"overriding effect of the provisions of the RTI Act, even though the validity"
of that bye-law had not been challenged; (iii) not following the decisions of
this court in Maharashtra State Board of Secondary Education vs. Paritosh
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar"
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan"
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC"
"603] and Secretary, West Bengal Council of Higher Secondary Education"
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a
right to inspect his answer book under section 3 of the RTI Act and the
examining bodies like CBSE were not exempted from disclosure of
information under section 8(1)(e) of the RTI Act. The appellants contended
"that they were holding the “information” (in this case, the evaluated answer"
10
books) in a fiduciary relationship and therefore exempted under section
8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission contended
that the object of the RTI Act is to ensure maximum disclosure of
information and minimum exemptions from disclosure; that an examining
"body does not hold the evaluated answer books, in any fiduciary relationship"
either with the student or the examiner; and that the information sought by
"any examinee by way of inspection of his answer books, will not fall under"
any of the exempted categories of information enumerated in section 8 of the
RTI Act. It was submitted that an examining body being a public authority
"holding the ‘information’, that is, the evaluated answer-books, and the"
inspection of answer-books sought by the examinee being exercise of ‘right
"to information’ as defined under the Act, the examinee as a citizen has the"
right to inspect the answer-books and take certified copies thereof. It was
"also submitted that having regard to section 22 of the RTI Act, the"
provisions of the said Act will have effect notwithstanding anything
"inconsistent in any law and will prevail over any rule, regulation or bye law"
of the examining body barring or prohibiting inspection of answer books.
11
"8. On the contentions urged, the following questions arise for our"
consideration :
(i) Whether an examinee’s right to information under the RTI Act
includes a right to inspect his evaluated answer books in a public
examination or taking certified copies thereof?
(ii) Whether the decisions of this court in Maharashtra State Board of
Secondary Education [1984 (4) SCC 27] and other cases referred to
"above, in any way affect or interfere with the right of an examinee"
seeking inspection of his answer books or seeking certified copies
thereof?
(iii) Whether an examining body holds the evaluated answer books “in a
fiduciary relationship” and consequently has no obligation to give
inspection of the evaluated answer books under section 8 (1)(e) of
RTI Act?
(iv) If the examinee is entitled to inspection of the evaluated answer books
"or seek certified copies thereof, whether such right is subject to any"
"limitations, conditions or safeguards?"
Relevant Legal Provisions
"9. To consider these questions, it is necessary to refer to the statement of"
"objects and reasons, the preamble and the relevant provisions of the RTI"
12
"Act. RTI Act was enacted in order to ensure smoother, greater and more"
effective access to information and provide an effective framework for
effectuating the right of information recognized under article 19 of the
Constitution. The preamble to the Act declares the object sought to be
achieved by the RTI Act thus:
“An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control
"of public authorities, in order to promote transparency and accountability"
"in the working of every public authority, the constitution of a Central"
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to contain
corruption and to hold Governments and their instrumentalities
accountable to the governed;
And whereas revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
"Governments, optimum use of limited fiscal resources and the"
preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while
preserving the paramountcy of the democratic ideal.”
Chapter II of the Act containing sections 3 to 11 deals with right to
information and obligations of public authorities. Section 3 provides for
"right to information and reads thus: “Subject to the provisions of this Act,"
all citizens shall have the right to information.” This section makes it clear
13
"that the RTI Act gives a right to a citizen to only access information, but not"
seek any consequential relief based on such information. Section 4 deals
with obligations of public authorities to maintain the records in the manner
provided and publish and disseminate the information in the manner
provided. Section 6 deals with requests for obtaining information. It
provides that applicant making a request for information shall not be
required to give any reason for requesting the information or any personal
details except those that may be necessary for contacting him. Section 8
deals with exemption from disclosure of information and is extracted in its
entirety:
“8. Exemption from disclosure of information -- (1) Notwithstanding
"anything contained in this Act, there shall be no obligation to give any"
"citizen,-"
"(a) information, disclosure of which would"
"prejudicially affect the sovereignty and integrity of India, the security,"
"strategic, scientific or economic interests of the State, relation with foreign"
State or lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the disclosure of which
may constitute contempt of court;
"(c) information, the disclosure of which would cause a"
breach of privilege of Parliament or the State Legislature;
"(d) information including commercial confidence, trade"
"secrets or intellectual property, the disclosure of which would harm the"
"competitive position of a third party, unless the competent authority is"
satisfied that larger public interest warrants the disclosure of such
information;
14
(e) information available to a person in his fiduciary
"relationship, unless the competent authority is satisfied that the larger"
public interest warrants the disclosure of such information;
(f) information received in confidence from foreign
Government;
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or identify the source of
information or assistance given in confidence for law enforcement or
security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
"the Council of Ministers, Secretaries and other officers:"
"Provided that the decisions of Council of Ministers, the reasons thereof,"
and the material on the basis of which the decisions were taken shall be
"made public after the decision has been taken, and the matter is complete,"
or over:
Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has no relationship to any public activity or
"interest, or which would cause unwarranted invasion of the privacy of the"
individual unless the Central Public Information Officer or the State
"Public Information Officer or the appellate authority, as the case may be,"
is satisfied that the larger public interest justifies the disclosure of such
information:
Provided that the information which cannot be denied to the Parliament or
a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in"
"accordance with sub-section (1), a public authority may allow access to"
"information, if public interest in disclosure outweighs the harm to the"
protected interests.
"(3) Subject to the provisions of clauses (a), (c) and (i)"
"of sub-section (1), any information relating to any occurrence, event or"
"matter which has taken place, occurred or happened twenty years before"
15
the date on which any request is made under secton 6 shall be provided to
any person making a request under that section:
Provided that where any question arises as to the date from which the said
"period of twenty years has to be computed, the decision of the Central"
"Government shall be final, subject to the usual appeals provided for in this"
Act.”
(emphasis supplied)
"Section 9 provides that without prejudice to the provisions of section 8, a"
request for information may be rejected if such a request for providing
access would involve an infringement of copyright. Section 10 deals with
severability of exempted information and sub-section (1) thereof is extracted
below:
“(1) Where a request for access to information is rejected on the ground
"that it is in relation to information which is exempt from disclosure, then,"
"notwithstanding anything contained in this Act, access may be provided to"
that part of the record which does not contain any information which is
exempt from disclosure under this Act and which can reasonably be
severed from any part that contains exempt information.”
Section 11 deals with third party information and sub-section (1) thereof is
extracted below:
“(1) Where a Central Public Information Officer or a State Public
"Information Officer, as the case may be, intends to disclose any"
"information or record, or part thereof on a request made under this Act,"
which relates to or has been supplied by a third party and has been treated
"as confidential by that third party, the Central Public Information Officer"
"or State Public Information Officer, as the case may be, shall, within five"
"days from the receipt of the request, give a written notice to such third"
party of the request and of the fact that the Central Public Information
"Officer or State Public Information Officer, as the case may be, intends to"
16
"disclose the information or record, or part thereof, and invite the third"
"party to make a submission in writing or orally, regarding whether the"
"information should be disclosed, and such submission of the third party"
shall be kept in view while taking a decision about disclosure of
information:
Provided that except in the case of trade or commercial secrets protected
"by law, disclosure may be allowed if the public interest in disclosure"
outweighs in importance any possible harm or injury to the interests of
such third party.”
"The definitions of information, public authority, record and right to"
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are"
extracted below:
"“(f) ""information"" means any material in any form, including records,"
"documents, memos, e-mails, opinions, advices, press releases, circulars,"
"orders, logbooks, contracts, reports, papers, samples, models, data material"
held in any electronic form and information relating to any private body
which can be accessed by a public authority under any other law for the
time being in force;
"(h) ""public authority"" means any authority or body or institution of self-"
government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
"(d) by notification issued or order made by the appropriate Government,"
and includes any-
"(i) body owned, controlled or substantially financed;"
"(ii) non-Government organisation substantially financed,"
directly or indirectly by funds provided by the appropriate Government;
17
"(i) ""record"" includes-"
"(a) any document, manuscript and file;"
"(b) any microfilm, microfiche and facsimile copy of a document;"
(c) any reproduction of image or images embodied in such microfilm
(whether enlarged or not); and
(d) any other material produced by a computer or any other device;
"(j) ""right to information"" means the right to information accessible under"
this Act which is held by or under the control of any public authority and
includes the right to-
"(i) inspection of work, documents, records;"
"(ii) taking notes, extracts or certified copies of documents or records;"
(iii) taking certified samples of material;
"(iv) obtaining information in the form of diskettes, floppies, tapes,"
video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other
device;
Section 22 provides for the Act to have overriding effect and is extracted
below:
“The provisions of this Act shall have effect notwithstanding anything
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of"
"1923), and any other law for the time being in force or in any instrument"
having effect by virtue of any law other than this Act.”
10. It will also be useful to refer to a few decisions of this Court which
considered the importance and scope of the right to information. In State of
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:"
18
"“In a government of responsibility like ours, where all the agents of the"
"public must be responsible for their conduct, there can but few secrets."
"The people of this country have a right to know every public act,"
"everything, that is done in a public way, by their public functionaries."
They are entitled to know the particulars of every public transaction in all
"its bearing. The right to know, which is derived from the concept of"
"freedom of speech, though not absolute, is a factor which should make one"
"wary, when secrecy is claimed for transactions which can, at any rate,"
have no repercussion on public security.”
(emphasis supplied)
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:"
"“In modern constitutional democracies, it is axiomatic that citizens have a"
"right to know about the affairs of the Government which, having been"
"elected by them, seeks to formulate sound policies of governance aimed at"
"their welfare. However, like all other rights, even this right has recognised"
"limitations; it is, by no means, absolute. ………………Implicit in this"
assertion is the proposition that in transaction which have serious
"repercussions on public security, secrecy can legitimately be claimed"
because it would then be in the public interest that such matters are not
publicly disclosed or disseminated.
To ensure the continued participation of the people in the democratic
"process, they must be kept informed of the vital decisions taken by the"
"Government and the basis thereof. Democracy, therefore, expects"
openness and openness is a concomitant of a free society. Sunlight is the
best disinfectant. But it is equally important to be alive to the dangers that
lie ahead. It is important to realise that undue popular pressure brought to
bear on decision-makers is Government can have frightening side-effects.
If every action taken by the political or executive functionary is
transformed into a public controversy and made subject to an enquiry to
"soothe popular sentiments, it will undoubtedly have a chilling effect on the"
independence of the decision-maker who may find it safer not to take any
decision. It will paralyse the entire system and bring it to a grinding halt.
So we have two conflicting situations almost enigmatic and we think the
answer is to maintain a fine balance which would serve public interest.”
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,"
this Court held that right of information is a facet of the freedom of “speech
19
and expression” as contained in Article 19(1)(a) of the Constitution of India
and such a right is subject to any reasonable restriction in the interest of the
security of the state and subject to exemptions and exceptions.
Re : Question (i)
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to
"any material in any form which includes records, documents, opinions,"
papers among several other enumerated items. The term ‘record’ is defined
"in section 2(i) of the said Act as including any document, manuscript or file"
among others. When a candidate participates in an examination and writes
his answers in an answer-book and submits it to the examining body for
"evaluation and declaration of the result, the answer-book is a document or"
record. When the answer-book is evaluated by an examiner appointed by the
"examining body, the evaluated answer-book becomes a record containing"
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also
an ‘information’ under the RTI Act.
12. Section 3 of RTI Act provides that subject to the provisions of this
Act all citizens shall have the right to information. The term ‘right to
information’ is defined in section 2(j) as the right to information accessible
20
under the Act which is held by or under the control of any public authority.
"Having regard to section 3, the citizens have the right to access to all"
information held by or under the control of any public authority except those
excluded or exempted under the Act. The object of the Act is to empower
the citizens to fight against corruption and hold the Government and their
"instrumentalities accountable to the citizens, by providing them access to"
information regarding functioning of every public authority. Certain
safeguards have been built into the Act so that the revelation of information
will not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidential and sensitive information. The RTI Act provides
access to information held by or under the control of public authorities and
not in regard to information held by any private person. The Act provides
the following exclusions by way of exemptions and exceptions (under
"sections 8, 9 and 24) in regard to information held by public authorities:"
(i) Exclusion of the Act in entirety under section 24 to intelligence and
security organizations specified in the Second Schedule even though
"they may be “public authorities”, (except in regard to information"
with reference to allegations of corruption and human rights
violations).
21
(ii) Exemption of the several categories of information enumerated in
section 8(1) of the Act which no public authority is under an
"obligation to give to any citizen, notwithstanding anything contained"
"in the Act [however, in regard to the information exempted under"
"clauses (d) and (e), the competent authority, and in regard to the"
"information excluded under clause (j), Central Public Information"
"Officer/State Public Information Officer/the Appellate Authority, may"
"direct disclosure of information, if larger public interest warrants or"
justifies the disclosure].
(iii) If any request for providing access to information involves an
"infringement of a copyright subsisting in a person other than the State,"
the Central/State Public Information Officer may reject the request
under section 9 of RTI Act.
"Having regard to the scheme of the RTI Act, the right of the citizens to"
"access any information held or under the control of any public authority,"
should be read in harmony with the exclusions/exemptions in the Act.
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)"
are neither security nor intelligence organisations and therefore the
exemption under section 24 will not apply to them. The disclosure of
information with reference to answer-books does not also involve
infringement of any copyright and therefore section 9 will not apply.
22
"Resultantly, unless the examining bodies are able to demonstrate that the"
evaluated answer-books fall under any of the categories of exempted
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,"
they will be bound to provide access to the information and any applicant
"can either inspect the document/record, take notes, extracts or obtain"
certified copies thereof.
14. The examining bodies contend that the evaluated answer-books are
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are"
‘information’ held in its fiduciary relationship. They fairly conceded that
evaluated answer-books will not fall under any other exemptions in sub-
section (1) of section 8. Every examinee will have the right to access his
"evaluated answer-books, by either inspecting them or take certified copies"
"thereof, unless the evaluated answer-books are found to be exempted under"
section 8(1)(e) of the RTI Act.
Re : Question (ii)
"15. In Maharashtra State Board, this Court was considering whether"
denial of re-evaluation of answer-books or denial of disclosure by way of
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of"
23
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was"
violative of principles of natural justice and violative of Articles 14 and 19
of the Constitution of India. Rule 104(1) provided that no re-evaluation of
the answer books shall be done and on an application of any candidate
verification will be restricted to checking whether all the answers have been
examined and that there is no mistake in the totalling of marks for each
question in that subject and transferring marks correctly on the first cover
page of the answer book. Rule 104(3) provided that no candidate shall claim
or be entitled to re-evaluation of his answer-books or inspection of answer-
books as they were treated as confidential. This Court while upholding the
validity of Rule 104(3) held as under :
“…. the “process of evaluation of answer papers or of subsequent
verification of marks” under Clause (3) of Regulation 104 does not attract
the principles of natural justice since no decision making process which
brings about adverse civil consequences to the examinees in involved. The
principles of natural justice cannot be extended beyond reasonable and
rational limits and cannot be carried to such absurd lengths as to make it
necessary that candidates who have taken a public examination should be
allowed to participate in the process of evaluation of their performances or
to verify the correctness of the evaluation made by the examiners by
themselves conducting an inspection of the answer-books and determining
whether there has been a proper and fair valuation of the answers by the
"examiners."""
So long as the body entrusted with the task of framing the rules or
"regulations acts within the scope of the authority conferred on it, in the"
sense that the rules or regulations made by it have a rational nexus with
"the object and purpose of the statute, the court should not concern itself"
with the wisdom or efficaciousness of such rules or regulations…. The
Legislature and its delegate are the sole repositories of the power to decide
what policy should be pursued in relation to matters covered by the Act …
24
and there is no scope for interference by the Court unless the particular
provision impugned before it can be said to suffer from any legal
"infirmity, in the sense of its being wholly beyond the scope of the"
regulation making power or its being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations
imposed by the Constitution.
"It was perfectly within the competence of the Board, rather it was its plain"
"duty, to apply its mind and decide as a matter of policy relating to the"
conduct of the examination as to whether disclosure and inspection of the
"answer books should be allowed to the candidates, whether and to what"
extent verification of the result should be permitted after the results have
already been announced and whether any right to claim revaluation of the
answer books should be recognised or provided for. All these are
undoubtedly matters which have an intimate nexus with the objects and
"purposes of the enactment and are, therefore, with in the ambit of the"
general power to make regulations….”
This Court held that Regulation 104(3) cannot be held to be unreasonable
"merely because in certain stray instances, errors or irregularities had gone"
unnoticed even after verification of the concerned answer books according
to the existing procedure and it was only after further scrutiny made either
on orders of the court or in the wake of contentions raised in the petitions
"filed before a court, that such errors or irregularities were ultimately"
discovered. This court reiterated the view that “the test of reasonableness is
not applied in vacuum but in the context of life’s realities” and concluded
"that realistically and practically, providing all the candidates inspection of"
their answer books or re-evaluation of the answer books in the presence of
the candidates would not be feasible. Dealing with the contention that every
25
student is entitled to fair play in examination and receive marks matching his
"performance, this court held :"
“What constitutes fair play depends upon the facts and circumstances
relating to each particular given situation. If it is found that every possible
precaution has been taken and all necessary safeguards provided to ensure
that the answer books inclusive of supplements are kept in safe custody so
as to eliminate the danger of their being tampered with and that the
evaluation is done by the examiners applying uniform standards with
checks and crosschecks at different stages and that measures for detection
"of malpractice, etc. have also been effectively adopted, in such cases it"
"will not be correct on the part of the Courts to strike down, the provision"
prohibiting revaluation on the ground that it violates the rules of fair play.
It appears that the procedure evolved by the Board for ensuring fairness
and accuracy in evaluation of the answer books has made the system as
fool proof as can be possible and is entirely satisfactory. The Board is a
very responsible body. The candidates have taken the examination with
full awareness of the provisions contained in the Regulations and in the
declaration made in the form of application for admission to the
examination they have solemnly stated that they fully agree to abide by the
"regulations issued by the Board. In the circumstances, when we find that"
"all safeguards against errors and malpractices have been provided for,"
there cannot be said to be any denial of fair play to the examinees by
reason of the prohibition against asking for revaluation…. “
This Court concluded that if inspection and verification in the presence of
"the candidates, or revaluation, have to be allowed as of right, it may lead to"
"gross and indefinite uncertainty, particularly in regard to the relative ranking"
"etc. of the candidate, besides leading to utter confusion on account of the"
enormity of the labour and time involved in the process. This court
concluded :
26
“… the Court should be extremely reluctant to substitute its own views as
"to what is wise, prudent and proper in relation to academic matters in"
preference to those formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working of educational
institutions and the departments controlling them. It will be wholly wrong
for the court to make a pedantic and purely idealistic approach to the
"problems of this nature, isolated from the actual realities and grass root"
problems involved in the working of the system and unmindful of the
consequences which would emanate if a purely idealistic view as opposed
to a pragmatic one were to be propounded.”
16. The above principles laid down in Maharashtra State Board have
"been followed and reiterated in several decisions of this Court, some of"
which are referred to in para (6) above. But the principles laid down in
decisions such as Maharashtra State Board depend upon the provisions of
the rules and regulations of the examining body. If the rules and regulations
"of the examining body provide for re-evaluation, inspection or disclosure of"
"the answer-books, then none of the principles in Maharashtra State Board or"
"other decisions following it, will apply or be relevant. There has been a"
gradual change in trend with several examining bodies permitting inspection
and disclosure of the answer-books.
17. It is thus now well settled that a provision barring inspection or
disclosure of the answer-books or re-evaluation of the answer-books and
restricting the remedy of the candidates only to re-totalling is valid and
"binding on the examinee. In the case of CBSE, the provisions barring re-"
27
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104"
considered in Maharashtra State Board. As a consequence if an examination
is governed only by the rules and regulations of the examining body which
"bar inspection, disclosure or re-evaluation, the examinee will be entitled"
only for re-totalling by checking whether all the answers have been
evaluated and further checking whether there is no mistake in totaling of
marks for each question and marks have been transferred correctly to the
"title (abstract) page. The position may however be different, if there is a"
"superior statutory right entitling the examinee, as a citizen to seek access to"
"the answer books, as information."
"18. In these cases, the High Court has rightly denied the prayer for re-"
evaluation of answer-books sought by the candidates in view of the bar
contained in the rules and regulations of the examining bodies. It is also not
a relief available under the RTI Act. Therefore the question whether re-
"evaluation should be permitted or not, does not arise for our consideration."
What arises for consideration is the question whether the examinee is
entitled to inspect his evaluated answer-books or take certified copies
"thereof. This right is claimed by the students, not with reference to the rules"
"or bye-laws of examining bodies, but under the RTI Act which enables them"
28
and entitles them to have access to the answer-books as ‘information’ and
inspect them and take certified copies thereof. Section 22 of RTI Act
"provides that the provisions of the said Act will have effect, notwithstanding"
anything inconsistent therewith contained in any other law for the time being
in force. Therefore the provisions of the RTI Act will prevail over the
provisions of the bye-laws/rules of the examining bodies in regard to
"examinations. As a result, unless the examining body is able to demonstrate"
that the answer-books fall under the exempted category of information
"described in clause (e) of section 8(1) of RTI Act, the examining body will"
be bound to provide access to an examinee to inspect and take copies of his
"evaluated answer-books, even if such inspection or taking copies is barred"
under the rules/bye-laws of the examining body governing the examinations.
"Therefore, the decision of this Court in Maharashtra State Board (supra)"
"and the subsequent decisions following the same, will not affect or interfere"
with the right of the examinee seeking inspection of answer-books or taking
certified copies thereof.
Re : Question (iii)
19. Section 8(1) enumerates the categories of information which are
exempted from disclosure under the provisions of the RTI Act. The
29
examining bodies rely upon clause (e) of section 8(1) which provides that
"there shall be no obligation on any public authority to give any citizen,"
information available to it in its fiduciary relationship. This exemption is
subject to the condition that if the competent authority (as defined in section
2(e) of RTI Act) is satisfied that the larger public interest warrants the
"disclosure of such information, the information will have to be disclosed."
Therefore the question is whether the examining body holds the evaluated
answer-books in its fiduciary relationship.
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different
"capacities and relationship, involving a common duty or obligation."
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary"
relationship’ thus:
“A relationship in which one person is under a duty to act for the benefit
of the other on matters within the scope of the relationship. Fiduciary
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,"
and attorney-client – require the highest duty of care. Fiduciary
relationships usually arise in one of four situations : (1) when one person
"places trust in the faithful integrity of another, who as a result gains"
"superiority or influence over the first, (2) when one person assumes"
"control and responsibility over another, (3) when one person has a duty to"
act for or give advice to another on matters falling within the scope of the
"relationship, or (4) when there is a specific relationship that has"
"traditionally been recognized as involving fiduciary duties, as with a"
lawyer and a client or a stockbroker and a customer.”
30
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as
one whose intention is to act for the benefit of another as to matters relevant
to the relation between them. The Corpus Juris Secundum (Vol. 36A page
381) attempts to define fiduciary thus :
“A general definition of the word which is sufficiently comprehensive to
"embrace all cases cannot well be given. The term is derived from the civil,"
"or Roman, law. It connotes the idea of trust or confidence, contemplates"
"good faith, rather than legal obligation, as the basis of the transaction,"
"refers to the integrity, the fidelity, of the party trusted, rather than his"
"credit or ability, and has been held to apply to all persons who occupy a"
"position of peculiar confidence toward others, and to include those"
informal relations which exist whenever one party trusts and relies on
"another, as well as technical fiduciary relations."
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for"
"another, a trustee, a person holding the character of a trustee, or a"
"character analogous to that of a trustee, with respect to the trust and"
confidence involved in it and the scrupulous good faith and candor which
"it requires; a person having the duty, created by his undertaking, to act"
primarily for another’s benefit in matters connected with such
"undertaking. Also more specifically, in a statute, a guardian, trustee,"
"executor, administrator, receiver, conservator, or any person acting in any"
"fiduciary capacity for any person, trust, or estate. Some examples of what,"
"in particular connections, the term has been held to include and not to"
include are set out in the note.”
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines"
‘fiducial relation’ thus :
“There is a technical distinction between a ‘fiducial relation’ which is
"more correctly applicable to legal relationships between parties, such as"
"guardian and ward, administrator and heirs, and other similar"
"relationships, and ‘confidential relation’ which includes the legal"
"relationships, and also every other relationship wherein confidence is"
rightly reposed and is exercised.
"Generally, the term ‘fiduciary’ applies to any person who occupies a"
position of peculiar confidence towards another. It refers to integrity and
31
"fidelity. It contemplates fair dealing and good faith, rather than legal"
"obligation, as the basis of the transaction. The term includes those"
informal relations which exist whenever one party trusts and relies upon
"another, as well as technical fiduciary relations.”"
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term
fiduciary was defined thus :
“A fiduciary is someone who has undertaken to act for and on behalf of
another in a particular matter in circumstances which give rise to a
relationship of trust and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;
he must not make a profit out of his trust; he must not place himself in a
position where his duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without the informed
consent of his principal.”
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the"
California Court of Appeals defined fiduciary relationship as under :
“any relationship existing between the parties to the transaction where one
of the parties is duty bound to act with utmost good faith for the benefit of
the other party. Such a relationship ordinarily arises where confidence is
"reposed by one person in the integrity of another, and in such a relation the"
"party in whom the confidence is reposed, if he voluntarily accepts or"
"assumes to accept the confidence, can take no advantage from his acts"
relating to the interests of the other party without the latter’s knowledge
and consent.”
21. The term ‘fiduciary’ refers to a person having a duty to act for the
"benefit of another, showing good faith and condour, where such other person"
reposes trust and special confidence in the person owing or discharging the
duty. The term ‘fiduciary relationship’ is used to describe a situation or
32
transaction where one person (beneficiary) places complete confidence in
"another person (fiduciary) in regard to his affairs, business or transaction/s."
The term also refers to a person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in confidence and for the
"benefit and advantage of the beneficiary, and use good faith and fairness in"
dealing with the beneficiary or the things belonging to the beneficiary. If the
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust"
"or to execute certain acts in regard to or with reference to the entrusted thing,"
the fiduciary has to act in confidence and expected not to disclose the thing
or information to any third party. There are also certain relationships where
both the parties have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-à-vis another partner and
an employer vis-à-vis employee. An employee who comes into possession
of business or trade secrets or confidential information relating to the
"employer in the course of his employment, is expected to act as a fiduciary"
"and cannot disclose it to others. Similarly, if on the request of the employer"
"or official superior or the head of a department, an employee furnishes his"
"personal details and information, to be retained in confidence, the employer,"
the official superior or departmental head is expected to hold such personal
"information in confidence as a fiduciary, to be made use of or disclosed only"
33
if the employee’s conduct or acts are found to be prejudicial to the employer.
"22. In a philosophical and very wide sense, examining bodies can be said"
"to act in a fiduciary capacity, with reference to students who participate in an"
"examination, as a government does while governing its citizens or as the"
present generation does with reference to the future generation while
preserving the environment. But the words ‘information available to a
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in
"its normal and well recognized sense, that is to refer to persons who act in a"
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries"
who are to be expected to be protected or benefited by the actions of the
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian"
"with reference to a minor/physically/infirm/mentally challenged, a parent"
"with reference to a child, a lawyer or a chartered accountant with reference"
"to a client, a doctor or nurse with reference to a patient, an agent with"
"reference to a principal, a partner with reference to another partner, a"
"director of a company with reference to a share-holder, an executor with"
"reference to a legatee, a receiver with reference to the parties to a lis, an"
employer with reference to the confidential information relating to the
"employee, and an employee with reference to business dealings/transaction"
of the employer. We do not find that kind of fiduciary relationship between
34
"the examining body and the examinee, with reference to the evaluated"
"answer-books, that come into the custody of the examining body."
23. The duty of examining bodies is to subject the candidates who have
completed a course of study or a period of training in accordance with its
"curricula, to a process of verification/examination/testing of their"
"knowledge, ability or skill, or to ascertain whether they can be said to have"
successfully completed or passed the course of study or training. Other
specialized Examining Bodies may simply subject candidates to a process of
"verification by an examination, to find out whether such person is suitable"
"for a particular post, job or assignment. An examining body, if it is a public"
"authority entrusted with public functions, is required to act fairly,"
"reasonably, uniformly and consistently for public good and in public"
interest. This Court has explained the role of an examining body in regard to
the process of holding examination in the context of examining whether it
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs."
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:"
"“The process of holding examinations, evaluating answer scripts,"
declaring results and issuing certificates are different stages of a single
statutory non-commercial function. It is not possible to divide this
function as partly statutory and partly administrative. When the
Examination Board conducts an examination in discharge of its statutory
"function, it does not offer its ""services"" to any candidate. Nor does a"
35
"student who participates in the examination conducted by the Board, hires"
or avails of any service from the Board for a consideration. On the other
"hand, a candidate who participates in the examination conducted by the"
"Board, is a person who has undergone a course of study and who requests"
the Board to test him as to whether he has imbibed sufficient knowledge to
be fit to be declared as having successfully completed the said course of
"education; and if so, determine his position or rank or competence vis-a-"
vis other examinees. The process is not therefore availment of a service by
"a student, but participation in a general examination conducted by the"
Board to ascertain whether he is eligible and fit to be considered as having
successfully completed the secondary education course. The examination
fee paid by the student is not the consideration for availment of any
"service, but the charge paid for the privilege of participation in the"
examination.……… The fact that in the course of conduct of the
"examination, or evaluation of answer-scripts, or furnishing of mark-books"
"or certificates, there may be some negligence, omission or deficiency,"
"does not convert the Board into a service-provider for a consideration, nor"
convert the examinee into a consumer ………”
It cannot therefore be said that the examining body is in a fiduciary
relationship either with reference to the examinee who participates in the
examination and whose answer-books are evaluated by the examining body.
24. We may next consider whether an examining body would be entitled
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that"
it is in a fiduciary relationship with the examinee. That section provides that
"notwithstanding anything contained in the Act, there shall be no obligation"
to give any citizen information available to a person in his fiduciary
"relationship. This would only mean that even if the relationship is fiduciary,"
the exemption would operate in regard to giving access to the information
36
"held in fiduciary relationship, to third parties. There is no question of the"
"fiduciary withholding information relating to the beneficiary, from the"
beneficiary himself. One of the duties of the fiduciary is to make thorough
disclosure of all relevant facts of all transactions between them to the
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if"
"it is in a fiduciary relationship with an examinee, will be liable to make a full"
disclosure of the evaluated answer-books to the examinee and at the same
"time, owe a duty to the examinee not to disclose the answer-books to anyone"
"else. If A entrusts a document or an article to B to be processed, on"
"completion of processing, B is not expected to give the document or article"
to anyone else but is bound to give the same to A who entrusted the
"document or article to B for processing. Therefore, if a relationship of"
fiduciary and beneficiary is assumed between the examining body and the
"examinee with reference to the answer-book, section 8(1)(e) would operate"
as an exemption to prevent access to any third party and will not operate as a
"bar for the very person who wrote the answer-book, seeking inspection or"
disclosure of it.
25. An evaluated answer book of an examinee is a combination of two
different ‘informations’. The first is the answers written by the examinee and
37
second is the marks/assessment by the examiner. When an examinee seeks
inspection of his evaluated answer-books or seeks a certified copy of the
"evaluated answer-book, the information sought by him is not really the"
"answers he has written in the answer-books (which he already knows), nor"
the total marks assigned for the answers (which has been declared). What he
"really seeks is the information relating to the break-up of marks, that is, the"
specific marks assigned to each of his answers. When an examinee seeks
"‘information’ by inspection/certified copies of his answer-books, he knows"
the contents thereof being the author thereof. When an examinee is
"permitted to examine an answer-book or obtain a certified copy, the"
examining body is not really giving him some information which is held by
"it in trust or confidence, but is only giving him an opportunity to read what"
he had written at the time of examination or to have a copy of his answers.
"Therefore, in furnishing the copy of an answer-book, there is no question of"
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is"
not in regard to the answer-book but in regard to the marks awarded on
evaluation of the answer-book. Even here the total marks given to the
examinee in regard to his answer-book are already declared and known to
the examinee. What the examinee actually wants to know is the break-up of
"marks given to him, that is how many marks were given by the examiner to"
38
each of his answers so that he can assess how is performance has been
evaluated and whether the evaluation is proper as per his hopes and
"expectations. Therefore, the test for finding out whether the information is"
"exempted or not, is not in regard to the answer book but in regard to the"
evaluation by the examiner.
26. This takes us to the crucial issue of evaluation by the examiner. The
examining body engages or employs hundreds of examiners to do the
evaluation of thousands of answer books. The question is whether the
information relating to the ‘evaluation’ (that is assigning of marks) is held
by the examining body in a fiduciary relationship. The examining bodies
contend that even if fiduciary relationship does not exist with reference to
"the examinee, it exists with reference to the examiner who evaluates the"
answer-books. On a careful examination we find that this contention has no
merit. The examining body entrusts the answer-books to an examiner for
evaluation and pays the examiner for his expert service. The work of
evaluation and marking the answer-book is an assignment given by the
examining body to the examiner which he discharges for a consideration.
"Sometimes, an examiner may assess answer-books, in the course of his"
"employment, as a part of his duties without any specific or special"
39
remuneration. In other words the examining body is the ‘principal’ and the
"examiner is the agent entrusted with the work, that is, evaluation of answer-"
"books. Therefore, the examining body is not in the position of a fiduciary"
"with reference to the examiner. On the other hand, when an answer-book is"
"entrusted to the examiner for the purpose of evaluation, for the period the"
answer-book is in his custody and to the extent of the discharge of his
"functions relating to evaluation, the examiner is in the position of a fiduciary"
with reference to the examining body and he is barred from disclosing the
contents of the answer-book or the result of evaluation of the answer-book to
anyone other than the examining body. Once the examiner has evaluated the
"answer books, he ceases to have any interest in the evaluation done by him."
"He does not have any copy-right or proprietary right, or confidentiality right"
in regard to the evaluation. Therefore it cannot be said that the examining
"body holds the evaluated answer books in a fiduciary relationship, qua the"
examiner.
"27. We, therefore, hold that an examining body does not hold the"
evaluated answer-books in a fiduciary relationship. Not being information
"available to an examining body in its fiduciary relationship, the exemption"
under section 8(1)(e) is not available to the examining bodies with reference
to evaluated answer-books. As no other exemption under section 8 is
40
"available in respect of evaluated answer books, the examining bodies will"
have to permit inspection sought by the examinees.
Re : Question (iv)
28. When an examining body engages the services of an examiner to
"evaluate the answer-books, the examining body expects the examiner not to"
disclose the information regarding evaluation to anyone other than the
examining body. Similarly the examiner also expects that his name and
particulars would not be disclosed to the candidates whose answer-books are
"evaluated by him. In the event of such information being made known, a"
disgruntled examinee who is not satisfied with the evaluation of the answer
"books, may act to the prejudice of the examiner by attempting to endanger"
"his physical safety. Further, any apprehension on the part of the examiner"
"that there may be danger to his physical safety, if his identity becomes"
"known to the examinees, may come in the way of effective discharge of his"
"duties. The above applies not only to the examiner, but also to the"
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book."
The answer book usually contains not only the signature and code number of
"the examiner, but also the signatures and code number of the scrutiniser/co-"
ordinator/head examiner. The information as to the names or particulars of
the examiners/co-ordinators/scrutinisers/head examiners are therefore
41
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground"
"that if such information is disclosed, it may endanger their physical safety."
"Therefore, if the examinees are to be given access to evaluated answer-"
"books either by permitting inspection or by granting certified copies, such"
access will have to be given only to that part of the answer-book which does
not contain any information or signature of the examiners/co-
"ordinators/scrutinisers/head examiners, exempted from disclosure under"
section 8(1)(g) of RTI Act. Those portions of the answer-books which
contain information regarding the examiners/co-ordinators/scrutinisers/head
examiners or which may disclose their identity with reference to signature or
"initials, shall have to be removed, covered, or otherwise severed from the"
"non-exempted part of the answer-books, under section 10 of RTI Act."
29. The right to access information does not extend beyond the period
during which the examining body is expected to retain the answer-books. In
"the case of CBSE, the answer-books are required to be maintained for a"
period of three months and thereafter they are liable to be disposed
of/destroyed. Some other examining bodies are required to keep the answer-
books for a period of six months. The fact that right to information is
available in regard to answer-books does not mean that answer-books will
have to be maintained for any longer period than required under the rules
42
and regulations of the public authority. The obligation under the RTI Act is
to make available or give access to existing information or information
which is expected to be preserved or maintained. If the rules and regulations
governing the functioning of the respective public authority require
"preservation of the information for only a limited period, the applicant for"
information will be entitled to such information only if he seeks the
"information when it is available with the public authority. For example, with"
"reference to answer-books, if an examinee makes an application to CBSE for"
inspection or grant of certified copies beyond three months (or six months or
such other period prescribed for preservation of the records in regard to
"other examining bodies) from the date of declaration of results, the"
application could be rejected on the ground that such information is not
available. The power of the Information Commission under section 19(8) of
the RTI Act to require a public authority to take any such steps as may be
"necessary to secure compliance with the provision of the Act, does not"
"include a power to direct the public authority to preserve the information, for"
any period larger than what is provided under the rules and regulations of the
public authority.
"30. On behalf of the respondents/examinees, it was contended that having"
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on"
43
the part of every public authority to maintain the information for a minimum
period of twenty years and make it available whenever an application was
made in that behalf. This contention is based on a complete misreading and
misunderstanding of section 8(3). The said sub-section nowhere provides
that records or information have to be maintained for a period of twenty
years. The period for which any particular records or information has to be
maintained would depend upon the relevant statutory rule or regulation of
the public authority relating to the preservation of records. Section 8(3)
"provides that information relating to any occurrence, event or matters which"
has taken place and occurred or happened twenty years before the date on
"which any request is made under section 6, shall be provided to any person"
making a request. This means that where any information required to be
maintained and preserved for a period beyond twenty years under the rules
"of the public authority, is exempted from disclosure under any of the"
"provisions of section 8(1) of RTI Act, then, notwithstanding such"
"exemption, access to such information shall have to be provided by"
"disclosure thereof, after a period of twenty years except where they relate to"
"information falling under clauses (a), (c) and (i) of section 8(1). In other"
"words, section 8(3) provides that any protection against disclosure that may"
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to"
44
be available after twenty years in regard to records which are required to be
preserved for more than twenty years. Where any record or information is
required to be destroyed under the rules and regulations of a public authority
"prior to twenty years, section 8(3) will not prevent destruction in accordance"
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring
"all ‘information’ to be preserved and maintained for twenty years or more,"
nor does it override any rules or regulations governing the period for which
"the record, document or information is required to be preserved by any"
public authority.
31. The effect of the provisions and scheme of the RTI Act is to divide
‘information’ into the three categories. They are :
(i) Information which promotes transparency and accountability in
"the working of every public authority, disclosure of which may"
also help in containing or discouraging corruption (enumerated in
clauses (b) and (c) of section 4(1) of RTI Act).
(ii) Other information held by public authority (that is all information
other than those falling under clauses (b) and (c) of section 4(1) of
RTI Act).
(iii) Information which is not held by or under the control of any
public authority and which cannot be accessed by a public
authority under any law for the time being in force.
Information under the third category does not fall within the scope of RTI
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held"
45
"by or under the control of a public authority, which falls either under the first"
or second category. In regard to the information falling under the first
"category, there is also a special responsibility upon public authorities to suo"
moto publish and disseminate such information so that they will be easily
and readily accessible to the public without any need to access them by
having recourse to section 6 of RTI Act. There is no such obligation to
publish and disseminate the other information which falls under the second
category.
"32. The information falling under the first category, enumerated in"
sections 4(1)(b) & (c) of RTI Act are extracted below :
“4. Obligations of public authorities.-(1) Every public authority shall--
(a) xxxxxx
(b) publish within one
"hundred and twenty days from the enactment of this Act,--"
"(i) the particulars of its organisation, functions and duties;"
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making
"process, including channels of supervision and"
accountability;
(iv) the norms set by it for the discharge of its functions;
"(v) the rules, regulations, instructions, manuals and records,"
held by it or under its control or used by its employees for
discharging its functions;
(vi) a statement of the categories of documents that are held
by it or under its control;
46
(vii) the particulars of any arrangement that exists for
"consultation with, or representation by, the members of the"
public in relation to the formulation of its policy or
implementation thereof;
"(viii) a statement of the boards, councils, committees and"
other bodies consisting of two or more persons constituted
"as its part or for the purpose of its advice, and as to whether"
"meetings of those boards, councils, committees and other"
"bodies are open to the public, or the minutes of such"
meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its
"officers and employees, including the system of"
compensation as provided in its regulations;
"(xi) the budget allocated to each of its agency, indicating"
"the particulars of all plans, proposed expenditures and"
reports on disbursements made;
"(xii) the manner of execution of subsidy programmes,"
including the amounts allocated and the details of
beneficiaries of such programmes;
"(xiii) particulars of recipients of concessions, permits or"
authorisations granted by it;
"(xiv) details in respect of the information, available to or"
"held by it, reduced in an electronic form;"
(xv) the particulars of facilities available to citizens for
"obtaining information, including the working hours of a"
"library or reading room, if maintained for public use;"
"(xvi) the names, designations and other particulars of the"
Public Information Officers;
(xvii) such other information as may be prescribed; and
thereafter update these publications every year;
(c) publish all relevant facts
while formulating important policies or announcing the decisions
which affect public;
(emphasis supplied)
47
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of"
information enumerated in sections 4(1)(b) & (c) are extracted below:
“(2) It shall be a constant endeavour of every public
authority to take steps in accordance with the requirements of clause (b) of
sub-section (1) to provide as much information suo motu to the public
"at regular intervals through various means of communications,"
"including internet, so that the public have minimum resort to the use"
of this Act to obtain information.
"(3) For the purposes of sub-section (1), every"
information shall be disseminated widely and in such form and
manner which is easily accessible to the public.
(4) All materials shall be disseminated taking into
"consideration the cost effectiveness, local language and the most effective"
method of communication in that local area and the information should be
"easily accessible, to the extent possible in electronic format with the"
"Central Public Information Officer or State Public Information Officer, as"
"the case may be, available free or at such cost of the medium or the print"
cost price as may be prescribed.
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated"""
means making known or communicated the information to the public
"through notice boards, newspapers, public announcements, media"
"broadcasts, the internet or any other means, including inspection of offices"
of any public authority.”
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act is in the nature
of an exception to section 3 which empowers the citizens with the right to
"information, which is a derivative from the freedom of speech; and that"
"therefore section 8 should be construed strictly, literally and narrowly. This"
may not be the correct approach. The Act seeks to bring about a balance
"between two conflicting interests, as harmony between them is essential for"
preserving democracy. One is to bring about transparency and accountability
by providing access to information under the control of public authorities.
48
"The other is to ensure that the revelation of information, in actual practice,"
does not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidentiality of sensitive information. The preamble to the
Act specifically states that the object of the Act is to harmonise these two
conflicting interests. While sections 3 and 4 seek to achieve the first
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective."
"Therefore when section 8 exempts certain information from being disclosed,"
"it should not be considered to be a fetter on the right to information, but as"
an equally important provision protecting other public interests essential for
the fulfilment and preservation of democratic ideals.
34. When trying to ensure that the right to information does not conflict
with several other public interests (which includes efficient operations of the
"governments, preservation of confidentiality of sensitive information,"
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and"
enumerate all types of information which require to be exempted from
disclosure in public interest. The legislature has however made an attempt to
do so. The enumeration of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier Act that is section 8 of
"Freedom to Information Act, 2002. The Courts and Information"
49
Commissions enforcing the provisions of RTI Act have to adopt a purposive
"construction, involving a reasonable and balanced approach which"
"harmonises the two objects of the Act, while interpreting section 8 and the"
other provisions of the Act.
"35. At this juncture, it is necessary to clear some misconceptions about"
the RTI Act. The RTI Act provides access to all information that is
available and existing. This is clear from a combined reading of section 3
and the definitions of ‘information’ and ‘right to information’ under clauses
(f) and (j) of section 2 of the Act. If a public authority has any information in
"the form of data or analysed data, or abstracts, or statistics, an applicant may"
"access such information, subject to the exemptions in section 8 of the Act."
But where the information sought is not a part of the record of a public
"authority, and where such information is not required to be maintained under"
"any law or the rules or regulations of the public authority, the Act does not"
"cast an obligation upon the public authority, to collect or collate such non-"
available information and then furnish it to an applicant. A public authority
is also not required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not required to provide
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any"
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’
50
"in the definition of ‘information’ in section 2(f) of the Act, only refers to"
such material available in the records of the public authority. Many public
"authorities have, as a public relation exercise, provide advice, guidance and"
opinion to the citizens. But that is purely voluntary and should not be
confused with any obligation under the RTI Act.
36. Section 19(8) of RTI Act has entrusted the Central/State Information
"Commissions, with the power to require any public authority to take any"
such steps as may be necessary to secure the compliance with the provisions
"of the Act. Apart from the generality of the said power, clause (a) of section"
"19(8) refers to six specific powers, to implement the provision of the Act."
Sub-clause (i) empowers a Commission to require the public authority to
provide access to information if so requested in a particular ‘form’ (that is
"either as a document, micro film, compact disc, pendrive, etc.). This is to"
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a
Commission to require the public authority to appoint a Central Public
Information Officer or State Public Information Officer. This is to secure
compliance with section 5 of the Act. Sub-clause (iii) empowers the
Commission to require a public authority to publish certain information or
categories of information. This is to secure compliance with section 4(1) and
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public
51
authority to make necessary changes to its practices relating to the
"maintenance, management and destruction of the records. This is to secure"
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)
empowers a Commission to require the public authority to increase the
training for its officials on the right to information. This is to secure
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a"
Commission to require the public authority to provide annual reports in
regard to the compliance with clause (b) of section 4(1). This is to ensure
compliance with the provisions of clause (b) of section 4(1) of the Act. The
power under section 19(8) of the Act however does not extend to requiring a
public authority to take any steps which are not required or contemplated to
secure compliance with the provisions of the Act or to issue directions
beyond the provisions of the Act. The power under section 19(8) of the Act
is intended to be used by the Commissions to ensure compliance with the
"Act, in particular ensure that every public authority maintains its records"
duly catalogued and indexed in the manner and in the form which facilitates
"the right to information and ensure that the records are computerized, as"
required under clause (a) of section 4(1) of the Act; and to ensure that the
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are
"published and disseminated, and are periodically updated as provided in sub-"
52
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated
in clause (b) of section 4(1) of the Act are effectively disseminated (by
"publications in print and on websites and other effective means), apart from"
"providing transparency and accountability, citizens will be able to access"
relevant information and avoid unnecessary applications for information
under the Act.
37. The right to information is a cherished right. Information and right to
information are intended to be formidable tools in the hands of responsible
citizens to fight corruption and to bring in transparency and accountability.
The provisions of RTI Act should be enforced strictly and all efforts should
be made to bring to light the necessary information under clause (b) of
section 4(1) of the Act which relates to securing transparency and
accountability in the working of public authorities and in discouraging
"corruption. But in regard to other information,(that is information other than"
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance"
and emphasis are given to other public interests (like confidentiality of
"sensitive information, fidelity and fiduciary relationships, efficient operation"
"of governments, etc.). Indiscriminate and impractical demands or directions"
under RTI Act for disclosure of all and sundry information (unrelated to
transparency and accountability in the functioning of public authorities and
53
eradication of corruption) would be counter-productive as it will adversely
affect the efficiency of the administration and result in the executive getting
bogged down with the non-productive work of collecting and furnishing
"information. The Act should not be allowed to be misused or abused, to"
"become a tool to obstruct the national development and integration, or to"
"destroy the peace, tranquility and harmony among its citizens. Nor should it"
be converted into a tool of oppression or intimidation of honest officials
striving to do their duty. The nation does not want a scenario where 75% of
the staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular
duties. The threat of penalties under the RTI Act and the pressure of the
authorities under the RTI Act should not lead to employees of a public
"authorities prioritising ‘information furnishing’, at the cost of their normal"
and regular duties.
Conclusion
"38. In view of the foregoing, the order of the High Court directing the"
examining bodies to permit examinees to have inspection of their answer
"books is affirmed, subject to the clarifications regarding the scope of the RTI"
54
Act and the safeguards and conditions subject to which ‘information’ should
be furnished. The appeals are disposed of accordingly.
……………………….J
[R. V. Raveendran]
……………………….J
[A. K. Patnaik]
New Delhi;
"August 9, 2011."
|½
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6362 OF 2013
(Arising out of SLP(C) No.16870/2012)
Union Public Service Commission ...Appellant
versus
Gourhari Kamila ...Respondent
WITH
CIVIL APPEAL NO. 6363 OF 2013
(Arising out of SLP(C) No.16871/2012)
CIVIL APPEAL NO. 6364 OF 2013
(Arising out of SLP(C) No.16872/2012)
CIVIL APPEAL NO. 6365 OF 2013
(Arising out of SLP(C) No.16873/2012)
O R D E R
Leave granted.
These appeals are directed against judgment dated 12.12.2011 of the
Division Bench of the Delhi High Court whereby the letters patent appeals
"filed by appellant - Union Public Service Commission (for short, ’the"
Commission’) questioning the correctness of the orders passed by the
learned Single Judge were dismissed and the directions given by the Chief
Information Commissioner (CIC) to the Commission to provide information to
the respondents about the candidates who had competed with them in the
selection was upheld.
For the sake of convenience we may notice the facts from the appeal
arising out of SLP(C) No.16870/2012.
"In response to advertisement No.13 issued by the Commission, the"
respondent applied for recruitment as Deputy Director (Ballistics) in
"Central Forensic Science Laboratory, Ballistic Division under the"
"Directorate of Forensic Science, Ministry of Home Affairs. After the"
"selection process was completed, the respondent submitted application dated"
"17.3.2010 under the Right to Information Act, 2005 (for short, ’the Act’)"
for supply of following information/documents:
"""1. What are the criteria for the short listing of the candidates?"
2. How many candidates have been called for the interview?
3. Kindly provide the names of all the short listed candidates called
for interview held on 16.3.2010.
4. How many years of experience in the relevant field (Analytical
methods and research in the field of Ballistics) mentioned in the
advertisement have been considered for the short listing of the
candidates for the interview held for the date on 16.3.2010?
5. Kindly provide the certified xerox copies of experience
certificates of all the candidates called for the interview on
16.3.2010 who have claimed the experience in the relevant field as per
records available in the UPSC and as mentioned by the candidates at
Sl.No.10(B) of Part-I of their application who are called for the
interview held on 16.3.2010.
6. Kindly provide the certified xerox copies of M.Sc. and B.Sc. degree
certificates of all the candidates as per records available in the
UPSC who are called for the interview held on 16.3.2010.
7. Kindly provide the certified xerox copies of UGC guidelines and the
Govt. of India Gazette notification regarding whether the Degree in
M.Sc. Applied Mathematics and the Degree in M.Sc. Mathematics are
equivalent or not as per available records in the UPSC.
8. Kindly provide the certified xerox copies of UGC guidelines and the
Govt. of India Gazette notification regarding whether the Degree in
M.Sc. Applied Physics and the Degree in M.Sc. Physics are equivalent
"or not as per available records in the UPSC."""
Deputy Secretary and Central Public Information Officer (CPIO) of the
"Commission send reply dated 16.4.2010, the relevant portions of which are"
reproduced below:
"""Point 1 to 4: As the case is subjudice in Central"
"Administrative Tribunal (Principal Bench),"
"Hyderabad, hence the information cannot be"
provided.
Point 5 & 6: Photocopy of experience certificate and M.Sc. and
B.Sc. degree certificates of called candidates
cannot be given as the candidates have given their
personal details to the Commission is a fiduciary
relationship with expectation that this information
"will not be disclosed to others. Hence, disclosures"
of personal information of candidates held in a
fiduciary capacity is exempted from disclosures
"under Section 8(l)(e) of the RTI Act, 2005. Further"
disclosures of these details to another candidate
is not likely to serve any public interest of
activity and hence is exempted under Section
8(1)(j) of the said Act.
"Point 7 & 8: For copy of UGC Guidelines and Gazette notification,"
"you may contact University Grant Commission,"
"directly, as UGC is a distinct public authority."""
The respondent challenged the aforesaid communication by filing an
"appeal under Section 19(1) of the Act, which was partly allowed by the"
Appellate Authority and a direction was given to the Commission to provide
information sought by the respondent under point Nos. 1 to 3 of the
application.
"The order of the Appellate Authority did not satisfy the respondent,"
who filed further appeal under Section 19(3) of the Act. The CIC allowed
the appeal and directed the Commission to supply the remaining information
and the documents.
The Commission challenged the order of the CIC in Writ Petition Civil
"No. 3365/2011, which was summarily dismissed by the learned Single Judge of"
the High Court by making a cryptic observation that he is not inclined to
interfere with the order of the CIC because the information asked for
"cannot be treated as exempted under Section 8(1)(e), (g) or (j) of the Act."
The letters patent appeal filed by the Commission was dismissed by the
Division Bench of the High Court.
"Ms. Binu Tamta, learned counsel for the Commission, relied upon the"
judgment in Central Board of Secondary Education and another v. Aditya
Bandopadhyay and others (2011) 8 SCC 497 and argued that the CIC committed
serious error by ordering supply of information and the documents relating
to other candidates in violation of Section 8 of the Act which postulates
exemption from disclosure of information made available to the Commission.
She emphasised that relationship between the Commission and the candidates
who applied for selection against the advertised post is based on trust and
the Commission cannot be compelled to disclose the information and
documents produced by the candidates more so because no public interest is
involved in such disclosure. Ms. Tamta submitted that if view taken by the
"High Court is treated as correct, then it will become impossible for the"
Commission to function because lakhs of candidates submit their
applications for different posts advertised by the Commission. She placed
before the Court 62nd Annual Report of the Commission for the year 2011-12
to substantiate her statement.
We have considered the argument of the learned counsel and
scrutinized the record. In furtherance of the liberty given by the Court on
"01.03.2013, Ms. Neera Sharma, Under Secretary of the Commission filed"
"affidavit dated 18.3.2013, paragraphs 2 and 3 of which read as under:"
"""2. That this Hon’ble Court vide order dated 1.3.2013 was pleased to"
grant three weeks’ time to the petitioner to produce a statement
containing the details of various examinations and the number of
candidates who applied and/or appeared in the written examination
and/or interviewed. In response thereto it is submitted that during
the year 2011-12 the Commission conducted following examinations:
For Civil Services/Posts
"a. Civil Services (Preliminary) Examination, 2011 (CSP)"
"b. Civil Services (Main) Examination, 2011 (CSM)"
"c. Indian Forest Service Examination, 2011 (IFo.S)"
"d. Engineering Services Examination, 2011 (ESE)"
"e. Indian Economic Service/Indian Statistical Service Examination,"
2011 (IES/ISS)
"f. Geologists’ Examination, 2011 (GEOL)"
"g. Special Class Railways Apprentices’ Examination, 2011 (SCRA)"
"h. Special Class Railways Apprentices’ Examination, 2011 (SCRA)"
"i. Central Police Forces (Assistant Commandants) Examination, 2011"
(CPF)
j. Central Industrial Security Force (Assistant Commandants) Limited
"Departmental Competitive Examination, 2010 & 2011 (CISF)."
For Defence Services
a. Two examinations for National Defence Academy and naval Academy
(NDA & NA) - National Defence Academy and Naval Academy
"Examination (I), 2011 and National Defence Academy and Naval"
"Academy Examination (II), 2011."
b. Two examinations for Combined Defence Services (CDS) - Combined
"Defence Services Examination (II), 2011 and Combined Defence"
"Services Examination (I), 2012."
3. That in case of recruitment by examination during the year 2011-
2012 the number of applications received by Union Public Service
"Commission (UPSC) was 21,02,131 and the number of candidate who"
"appeared in the examination was 9,59,269. The number of candidates"
interviewed in 2011-2012 was 9938. 6863 candidates were recommended
"for appointment during the said period."""
Chapter 3 of the Annual Report of the Commission shows that during
"the years 2009-10, 2010-11 and 2011-12 lakhs of applications were received"
for various examinations conducted by the Commission. The particulars of
these examinations and the figures of the applications are given below:
|Exam |2009-10 |2010-11 |2011-12 |
|Civil | | | |
|l. CS(P) |409110 |547698 |499120 |
|2. CS(M) |11894 |12271 |11837 |
|3. IFoS |43262 |59530 |67168 |
|4. ESE |139751 |157649 |191869 |
|5. IES/ISS |6989 |7525 |9799 |
|6. SOLCE |- |2321 |- |
|7. CMS | 33420 | 33875 |- |
|8. GEOL |4919 |5262 |6037 |
|9. CPF |111261 |135268 |162393 |
"|10. CISF, LDCE |659 |- |729 |"
|11. SCRA |135539 |165038 | 197759 |
| | | |190165 |
|Total Civil |896804 |1126437 |1336876 |
|Defence | | | |
|l. NDA & NA (I) |277290 |374497 |317489 |
|2. NDA & NA(II) |150514 |193264 |211082 |
|3. CDS(II) |89604 |99017 |100043 |
|4. CDS (I) | 86575 | 99815 |136641 |
|Total Defence |603983 |766593 |765255 |
|Grand Total |1500787 |1893030 |2102131 |
"In Aditya Bandopadhyay’s case, this Court considered the question"
"whether examining bodies, like, CBSE are entitled to seek exemption under"
"Section 8(1)(e) of the Act. After analysing the provisions of the Act, the"
Court observed:
"""There are also certain relationships where both the parties have to"
act in a fiduciary capacity treating the other as the beneficiary.
Examples of these are: a partner vis-‘-vis another partner and an
employer vis-‘-vis employee. An employee who comes into possession of
business or trade secrets or confidential information relating to the
"employer in the course of his employment, is expected to act as a"
"fiduciary and cannot disclose it to others. Similarly, if on the"
request of the employer or official superior or the head of a
"department, an employee furnishes his personal details and"
"information, to be retained in confidence, the employer, the official"
superior or departmental head is expected to hold such personal
"information in confidence as a fiduciary, to be made use of or"
disclosed only if the employee’s conduct or acts are found to be
prejudicial to the employer.
"In a philosophical and very wide sense, examining bodies can be said"
"to act in a fiduciary capacity, with reference to the students who"
"participate in an examination, as a Government does while governing"
its citizens or as the present generation does with reference to the
future generation while preserving the environment. But the words
"""information available to a person in his fiduciary relationship"" are"
used in Section 8(1)(e) of the RTI Act in its normal and well-
"recognised sense, that is, to refer to persons who act in a fiduciary"
"capacity, with reference to a specific beneficiary or beneficiaries"
who are to be expected to be protected or benefited by the actions of
the fiduciary-a trustee with reference to the beneficiary of the
"trust, a guardian with reference to a minor/physically infirm/mentally"
"challenged, a parent with reference to a child, a lawyer or a"
"chartered accountant with reference to a client, a doctor or nurse"
"with reference to a patient, an agent with reference to a principal, a"
"partner with reference to another partner, a Director of a company"
"with reference to a shareholder, an executor with reference to a"
"legatee, a Receiver with reference to the parties to a lis, an"
employer with reference to the confidential information relating to
"the employee, and an employee with reference to business"
dealings/transaction of the employer. We do not find that kind of
"fiduciary relationship between the examining body and the examinee,"
"with reference to the evaluated answer books, that come into the"
custody of the examining body.
This Court has explained the role of an examining body in regard to
the process of holding examination in the context of examining whether
"it amounts to ""service"" to a consumer, in Bihar School Examination"
Board v. Suresh Prasad Sinha (2009) 8 SCC 483 in the following
manner:
"""11. ... The process of holding examinations, evaluating answer"
"scripts, declaring results and issuing certificates are"
different stages of a single statutory non-commercial function.
It is not possible to divide this function as partly statutory
and partly administrative.
12. When the Examination Board conducts an examination in
"discharge of its statutory function, it does not offer its"
’services’ to any candidate. Nor does a student who participates
"in the examination conducted by the Board, hire or avail of any"
"service from the Board for a consideration. On the other hand, a"
candidate who participates in the examination conducted by the
"Board, is a person who has undergone a course of study and who"
requests the Board to test him as to whether he has imbibed
sufficient knowledge to be fit to be declared as having
"successfully completed the said course of education; and if so,"
determine his position or rank or competence vis-‘-vis other
"examinees. The process is not, therefore, availment of a service"
"by a student, but participation in a general examination"
conducted by the Board to ascertain whether he is eligible and
fit to be considered as having successfully completed the
secondary education course. The examination fee paid by the
"student is not the consideration for availment of any service,"
but the charge paid for the privilege of participation in the
examination.
13. ... The fact that in the course of conduct of the
"examination, or evaluation of answer scripts, or furnishing of"
"marksheets or certificates, there may be some negligence,"
"omission or deficiency, does not convert the Board into a"
"service provider for a consideration, nor convert the examinee"
"into a consumer...."""
It cannot therefore be said that the examining body is in a fiduciary
relationship either with reference to the examinee who participates in
the examination and whose answer books are evaluated by the examining
body.
We may next consider whether an examining body would be entitled to
"claim exemption under Section 8(1)(e) of the RTI Act, even assuming"
that it is in a fiduciary relationship with the examinee. That section
"provides that notwithstanding anything contained in the Act, there"
shall be no obligation to give any citizen information available to a
person in his fiduciary relationship. This would only mean that even
"if the relationship is fiduciary, the exemption would operate in"
regard to giving access to the information held in fiduciary
"relationship, to third parties. There is no question of the fiduciary"
"withholding information relating to the beneficiary, from the"
beneficiary himself.
One of the duties of the fiduciary is to make thorough disclosure of
all the relevant facts of all transactions between them to the
"beneficiary, in a fiduciary relationship. By that logic, the examining"
"body, if it is in a fiduciary relationship with an examinee, will be"
liable to make a full disclosure of the evaluated answer books to the
"examinee and at the same time, owe a duty to the examinee not to"
disclose the answer books to anyone else. If A entrusts a document or
"an article to B to be processed, on completion of processing, B is not"
expected to give the document or article to anyone else but is bound
to give the same to A who entrusted the document or article to B for
"processing. Therefore, if a relationship of fiduciary and beneficiary"
is assumed between the examining body and the examinee with reference
"to the answer book, Section 8(1)(e) would operate as an exemption to"
prevent access to any third party and will not operate as a bar for
"the very person who wrote the answer book, seeking inspection or"
"disclosure of it."""
(emphasis supplied)
"By applying the ratio of the aforesaid judgment, we hold that the CIC"
committed a serious illegality by directing the Commission to disclose the
information sought by the respondent at point Nos. 4 and 5 and the High
Court committed an error by approving his order.
We may add that neither the CIC nor the High Court came to the
conclusion that disclosure of the information relating to other candidates
"was necessary in larger public interest. Therefore, the present case is not"
covered by the exception carved out in Section 8(1)(e) of the Act.
"Before concluding, we may observe that in the appeal arising out of"
"SLP (C) No.16871/2012, respondent Naresh Kumar was a candidate for the post"
of Senior Scientific Officer (Biology) in Forensic Science Laboratory. He
asked information about other three candidates who had competed with him
and the nature of interviews. The appeal filed by him under Section 19(3)
was allowed by the CIC without assigning reasons. The writ petition filed
by the Commission was dismissed by the learned Single Judge by recording a
cryptic order and the letters patent appeal was dismissed by the Division
"Bench. In the appeal arising out of SLP (C) No.16872/2012, respondent"
Udaya Kumara was a candidate for the post of Deputy Government counsel in
"the Department of Legal Affairs, Ministry of Law and Justice. He sought"
information regarding all other candidates and orders similar to those
passed in the other two cases were passed in his case as well. In the
"appeal arising out of SLP (C) No.16873/2012, respondent N. Sugathan"
(retired Biologist) sough information on various issues including the
candidates recommended for appointment on the posts of Senior Instructor
(Fishery Biology) and Senior Instructor (Craft and Gear) in the Central
"Institute of Fisheries, Nautical and Engineering Training. In his case"
"also, similar orders were passed by the CIC, the learned Single Judge and"
"the Division Bench of the High Court. Therefore, what we have observed qua"
the case of Gourhari Kamila would equally apply to the remaining three
cases.
"In the result, the appeals are allowed, the impugned judgment and the"
orders passed by the learned Single Judge and the CIC are set aside.
.......................J.
[G.S. SINGHVI]
.......................J.
[V. GOPALA GOWDA]
NEW DELHI;
"AUGUST 06, 2013."
ITEM NO.26 COURT NO.2 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).16870/2012
(From the judgement and order dated 12/12/2011 in LPA No.803/2011 of The
HIGH COURT OF DELHI AT N. DELHI)
U.P.S.C. Petitioner(s)
VERSUS
GOURHARI KAMILA Respondent(s)
(With prayer for interim relief and office report )
WITH
SLP(C) NO. 16871 of 2012
(With prayer for interim relief and office report)
SLP(C) NO. 16872 of 2012
(With appln(s) for permission to file reply to the rejoinder and with
prayer for interim relief and office report)
SLP(C) NO. 16873 of 2012
(With prayer for interim relief and office report)
(for final disposal)
Date: 06/08/2013 These Petitions were called on for hearing
today.
CORAM :
HON’BLE MR. JUSTICE G.S. SINGHVI
HON’BLE MR. JUSTICE V. GOPALA GOWDA
"For Petitioner(s) Ms. Binu Tamta,Adv."
For Respondent(s) None
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
The appeals are allowed in terms of the signed order.
|(Parveen Kr.Chawla) | |(Usha Sharma) |
|Court Master | |Court Master |
| | | |
[signed order is placed on the file]
-----------------------
10
\224Ú REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. 91 OF 2015
(Arising out of Transfer Petition (Civil) No. 707 of 2012)
Reserve Bank of India ........Petitioner(s)
versus
Jayantilal N. Mistry .....Respondent(s)
With
TRANSFERRED CASE (CIVIL) NO. 92 OF 2015
(Arising out of Transfer Petition (Civil) No. 708 of 2012)
I.C.I.C.I Bank Limited ........ Petitioner(s)
versus
S.S. Vohra and others .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 93 OF 2015
(Arising out of Transfer Petition (Civil) No. 711 of 2012)
National Bank for Agriculture
and Rural Development .........Petitioner(s)
versus
Kishan Lal Mittal .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 94 OF 2015
(Arising out of Transfer Petition (Civil) No. 712 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
P.P. Kapoor ..........Respondent(s)
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2015.12.16
13:23:34 IST
Reason:
1
TRANSFERRED CASE (CIVIL) NO. 95 OF 2015
(Arising out of Transfer Petition (Civil) No. 713 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Subhas Chandra Agrawal ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 96 OF 2015
(Arising out of Transfer Petition (Civil) No. 715 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Raja M. Shanmugam ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 97 OF 2015
(Arising out of Transfer Petition (Civil) No. 716 of 2012)
National Bank for Agriculture
and Rural Development ..........Petitioner(s)
versus
Sanjay Sitaram Kurhade ..........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 98 OF 2015
(Arising out of Transfer Petition (Civil) No. 717 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
K.P. Muralidharan Nair ...........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 99 OF 2015
(Arising out of Transfer Petition (Civil) No. 718 of 2012)
Reserve Bank of India ..........Petitioner(s)
versus
Ashwini Dixit ...........Respondent(s)
2
TRANSFERRED CASE (CIVIL) NO. 100 OF 2015
(Arising out of Transfer Petition (Civil) No. 709 of 2012)
Reserve Bank of India .........Petitioner(s)
versus
A.Venugopal and another .........Respondent(s)
TRANSFERRED CASE (CIVIL) NO. 101 OF 2015
(Arising out of Transfer Petition (Civil) No. 714 of 2012)
Reserve Bank of India .........Petitioner(s)
versus
Dr. Mohan K. Patil and others .........Respondent(s)
JUDGMENT
"M.Y. EQBAL, J."
The main issue that arises for our consideration in these
transferred cases is as to whether all the information sought
"for under the Right to Information Act, 2005 can be denied by"
the Reserve Bank of India and other Banks to the public at
"large on the ground of economic interest, commercial"
"confidence, fiduciary relationship with other Bank on the one"
hand and the public interest on the other. If the answer to
"above question is in negative, then upto what extent the"
information can be provided under the 2005 Act.
3
2. It has been contended by the RBI that it carries out
inspections of banks and financial institutions on regular
basis and the inspection reports prepared by it contain a wide
range of information that is collected in a fiduciary capacity.
The facts in brief of the Transfer Case No.91 of 2015 are that
"during May-June, 2010 the statutory inspection of Makarpura"
Industrial Estate Cooperative Bank Ltd. was conducted by RBI
"under the Banking Regulation Act, 1949. Thereafter, in"
"October 2010, the Respondent sought following information"
"from the CPIO of RBI under the Act of 2005, reply to which is"
tabulated hereunder:
Sr. No. Information sought Reply
1. Procedure Rules and RBI is conducting inspections
Regulations of Inspection under Section 35 of the B.R. Act
being carried out on 1949 (AACS) at prescribed
Co-operative Banks intervals.
2. Last RBI investigation and The Information sought is
audit report carried out by maintained by the bank in a
Shri Santosh Kumar during fiduciary capacity and was
"23rd April, 2010 to 6th May, obtained by Reserve Bank during"
2010 sent to Registrar of the the course of inspection of the
Cooperative of the Gujarat bank and hence cannot be given to
"State, Gandhinagar on the outsiders. Moreover, disclosure"
Makarpura Industrial Estate of such information may harm the
Co-op Bank Ltd Reg. No.2808 interest of the bank & banking
system. Such information is also
exempt from disclosure under
"Section 8(1) (a) & (e) of the RTI Act,"
4
2005.
3. Last 20 years inspection Same as at (2) above
(carried out with name of
inspector) report on above
bank and action taken report.
4. (i) Reports on all co-operative (i) Same as at (2) above
banks gone on liquidation
(ii) This information is not
(ii) action taken against all available with the
Directors and Managers for Department
recovery of public funds and
powers utilized by RBI and
analysis and procedure
adopted.
5. Name of remaining No specific information has
co-operative banks under been sought
your observations against
irregularities and action
taken reports
6. Period required to take No specific information has
action and implementations been sought
"3. On 30.3.2011, the First Appellate Authority disposed of"
the appeal of the respondent agreeing with the reply given by
"CPIO in query No.2, 3 & first part of 4, relying on the decision"
of the Full Bench of CIC passed in the case of Ravin
Ranchochodlal Patel and another vs. Reserve Bank of India.
"Thereafter, in the second appeal preferred by the aggrieved"
"respondent, the Central Information Commission by the"
"impugned order dated 01.11.2011, directed RBI to provide"
5
information as per records to the Respondent in relation to
queries Nos.2 to 6 before 30.11.2011. Aggrieved by the
"decision of the Central Information Commission (CIC),"
petitioner RBI moved the Delhi High Court by way of a Writ
Petition inter alia praying for quashing of the aforesaid order of
"the CIC. The High Court, while issuing notice, stayed the"
operation of the aforesaid order.
"4. Similarly, in Transfer Case No. 92 of 2015, the"
Respondent sought following information from the CPIO of RBI
"under the Act of 2005, reply to which is tabulated hereunder:"
Sr. Information sought Reply
No.
1. The Hon’ble FM made a In the absence of the specific
"written statement on the Floor details, we are not able to provide"
of the House which inter alia any information.
must have been made after
verifying the records from RBI
and the Bank must have the
copy of the facts as reported
by FM. Please supply copy of
the note sent to FM
2. The Hon’ble FM made a We do not have this information.
statement that some of the
"banks like SBI, ICICI Bank"
"Ltd, Bank of Baroda, Dena"
"Bank, HSBC Bank etc. were"
issued letter of displeasure for
violating FEMA guidelines for
opening of accounts where as
some other banks were even
6
fined Rupees one crore for
such violations. Please give
me the names of the banks
with details of violations
committed by them.
3. ‘Advisory Note’ issued to ICICI An Advisory Letter had been issued
"Bank for account opened by to the bank in December, 2007 for"
some fraudsters at its Patna the bank’s Patna branch having
Branch Information sought failed to (a) comply with the RBI
"about ""exact nature of guidelines on customer"
"irregularities committed by the identification, opening/operating"
"bank under ""FEMA"". Also give customer accounts, (b) the bank"
list of other illegalities not having followed the normal
committed by IBL and other banker’s prudence while opening
details of offences committed an account in question.
by IBL through various
branches in India and abroad As regards the list of supervisory
"along with action taken by the action taken by us, it may be"
Regulator including the names stated that the query is too general
"and designations of his and not specific. Further, we may"
"officials branch name, type of state that Supervisory actions"
offence committed etc. The taken were based on the scrutiny
exact nature of offences conducted under Section 35 of the
committed by Patna Branch of Banking Regulation (BR) Act. The
the bank and other branches information in the scrutiny report
of the bank and names of his is held in fiduciary capacity and
"officials involved, type of the disclosure of which can affect"
offence committed by them the economic interest of the
and punishment awarded by country and also affect the
"concerned authority, names commercial confidence of the"
and designation of the bank. And such information is
"designated authority, who also exempt from disclosure under"
investigated the above case Section 8(1)(a)(d) & (e) of the RTI
"and his findings and Act (extracts enclosed). We,"
"punishment awarded."" therefore, are unable to accede to"
your request.
"4. Exact nature of irregularities In this regard, self explicit print"
committed by ICICI Bank in out taken from the website of
Hong Kong Securities and Futures
"Commission, Hong Kong is"
enclosed.
5. ICICI Bank’s Moscow Branch We do not have the information.
involved in money laundering
act.
6. Imposition of fine on ICICI We do not have any information to
7
Bank under Section 13 of the furnish in this regard.
PMLA for loss of documents in
floods .
7. Copy of the Warning or As regards your request for
‘Advisory Note’ issued twice copies/details of advisory letters to
issued to the bank in the last
"ICICI Bank, we may state that"
two years and reasonssuch information is exempt from
recorded therein. disclosure under Section 8(1)(a)(d)
and (e) of the RTI Act. The
Name and designation of the scrutiny of records of the ICICI
authority who conducted this Bank is conducted by our
check and his decision to Department of Banking
issue an advisory note only Supervision (DBS). The Chief
instead of penalties to be General Manager-in charge of the
"imposed under the Act. DBS, Centre Office Reserve Bank"
of India is Shri S. Karuppasamy.
"5. In this matter, it has been alleged by the petitioner RBI"
that the respondent is aggrieved on account of his application
form for three-in-one account with the Bank and ICICI
"Securities Limited (ISEC) lost in the floods in July, 2005 and"
"because of non-submission of required documents, the"
"Trading account with ISEC was suspended, for which"
"respondent approached the District Consumer Forum, which"
rejected the respondent’s allegations of tempering of records
and dismissed the complaint of the respondent. His appeal
was also dismissed by the State Commission. Respondent
then moved an application under the Act of 2005 pertaining to
8
the suspension of operation of his said trading account. As
the consumer complaint as well as the abovementioned
"application did not yield any result for the respondent, he"
"made an application under the Act before the CPIO, SEBI,"
"appeal to which went up to the CIC, the Division Bench of"
which disposed of his appeal upholding the decision of the
"CPIO and the Appellate Authority of SEBI. Thereafter, in"
"August 2009, respondent once again made the present"
application under the Act seeking aforesaid information.
"Being aggrieved by the order of the appellate authority,"
"respondent moved second appeal before the CIC, who by the"
impugned order directed the CPIO of RBI to furnish
information pertaining to Advisory Notes as requested by the
"respondent within 15 working days. Hence, RBI approached"
Bombay High Court by way of writ petition.
"6. In Transfer Case No. 93 of 2015, the Respondent sought"
following information from the CPIO of National Bank for
"Agriculture and Rural Development under the Act of 2005,"
reply to which is tabulated hereunder:-
9
Sl. Information Sought Reply
No.
1. Copies of inspection reports of Furnishing of information is
Apex Co-operative Banks of exempt under Section 8(1)(a) of the
various States/Mumbai DCCB RTI Act.
from 2005 till date
2. Copies of all correspondences Different Departments in NABARD
with Maharashtra State deal with various issues related to
Govt./RBI/any other agency of MSCB. The query is general in
State/Central Co-operative Bank nature. Applicant may please be
"from January, 2010 till date. specific in query/information"
sought.
3. Provide confirmed/draft minutes Furnishing of information is
of meetings of Governing exempt under Sec. 8(1)(d) of the
Board/Board of RTI Act.
Directors/Committee of Directors
"of NABARD from April, 2007 till"
date
4. Provide information on Compliance available on the
compliance of Section 4 of RTI website of NABARD i.e.
"Act, 2005 by NABARD www.nabard.org"
5. Information may be provided on a -
CD
7. The First Appellate Authority concurred with the CPIO
and held that inspection report cannot be supplied in terms of
Section 8(1)(a) of the RTI Act. The Respondent filed Second
"Appeal before the Central Information Commission, which was"
allowed. The RBI filed writ petition before the High Court
challenging the order of the CIC dated 14.11.2011 on identical
10
issue and the High Court stayed the operation of the order of
the CIC.
"8. In Transfer Case No. 94 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:"
Sl. Information Sought Reply
No.
1. As mentioned at 2(a) what is Pursuant to the then Finance
RBI doing about uploading the Minister’s Budget Speech made in
"entire list of Bank defaulters Parliament on 28th February, 1994,"
on the bank’s website? When in order to alert the banks and FIs
will it be done? Why is it not and put them on guard against the
done? defaulters to other lending
institutions. RBI has put in place
scheme to collect details about
borrowers of banks and FIs with
outstanding aggregating Rs. 1 crore
and above which are classified as
‘Doubtful’ or ‘Loss or where suits
"are filed, as on 31st March and 30th"
September each year. In February
"1999, Reserve Bank of India had"
also introduced a scheme for
collection and dissemination of
information on cases of willful
default of borrowers with
outstanding balance of Rs. 25 lakh
"and above. At present, RBI"
disseminates list of above said non
suit filed ‘doubtful’ and ‘loss’
borrowed accounts of Rs.1 crore
and above on half-yearly basis (i.e.
as on March 31 and September 30)
to banks and FIs. for their
confidential use. The list of
non-suit filed accounts of willful
defaulters of Rs. 25 lakh and above
is also disseminated on quarterly
11
basis to banks and FIs for their
confidential use. Section 45 E of
the Reserve Bank of India Act 1934
prohibits the Reserve Bank from
disclosing ‘credit information’
except in the manner provided
therein.
"(iii) However, Banks and FIs"
"were advised on October 1, 2002 to"
furnish information in respect of
suit-filed accounts between Rs. 1
lakh and Rs. 1 crore from the
"period ended March, 2002 in a"
phased manner to CIBIL only.
CIBIL is placing the list of
defaulters (suit filed accounts) of
Rs. 1 crore and above and list of
willful defaulters (suit filed
accounts) of Rs. 25 lakh and above
"as on March 31, 2003 and onwards"
on its website (www.cibil.com)
9. The Central Information Commission heard the parties
through video conferencing. The CIC directed the CPIO of the
petitioner to provide information as per the records to the
Respondent in relation to query Nos. 2(b) and 2(c) before
10.12.2011. The Commission has also directed the Governor
RBI to display this information on its website before
"31.12.2011, in fulfillment of its obligations under Section 4(1)"
"(b) (xvii) of the Right to Information Act, 2005 and to update it"
each year.
12
"10. In Transfer Case No.95 of 2015, following information"
was sought and reply to it is tabulated hereunder:
Sl. Information Sought Reply
No.
1. Complete and detailed information As the violations of which
including related the banks were issued
documents/correspondence/file Show Cause Notices and
noting etc of RBI on imposing fines on subsequently imposed
some banks for violating rules like also penalties and based on the
referred in enclosed news clipping findings of the Annual
Financial Inspection (AFI) of
"2. Complete list of banks which were the banks, and the"
issued show cause notices before fine information is received by
"was imposed as also referred in us in a fiduciary capacity,"
enclosed news clipping mentioning the disclosure of such
also default for which show cause information would
notice was issued to each of such prejudicially affect the
banks economic interests of the
State and harm the bank’s
competitive position. The
SCNs/findings/reports/
associated
correspondences/orders are
therefore exempt from
disclosure in terms of the
provisions of Section 8(1)(a)
"(d) and (e) of the RTI Act,"
2005.
2. Complete list of banks which were -do-
issued show cause notices before fine
was imposed as also referred in
enclosed news clippings mentioning
also default for which show cause
notice was issued to each of such
banks.
3. List of banks out of those in query (2) Do
above where fine was not imposed
giving details like if their reply was
satisfactory etc.
4. List of banks which were ultimately The names of the 19 banks
found guilty and fines mentioning also and details of penalty
amount of fine on each of the bank imposed on them are
13
and criterion to decide fine on each of furnished in Annex 1.
the bank Regarding the criterion for
"deciding the fine, the"
penalties have been
imposed on these banks for
contravention of various
directions and instructions
such as failure to carry out
proper due diligence on
user appropriateness and
"suitability of products,"
selling derivative products
to users not having proper
"risk Management policies,"
not verifying the
underlying /adequacy of
underlying and eligible
limits under past
"performance route, issued"
by RBI in respect of
derivative transactions.
5. Is fine imposed /action taken on some No other bank was
other banks also other than as penalized other than those
"mentioned in enclosed news clipping mentioned in the Annex, in"
the context of press release
No.2010-2011/1555 of
"April 26, 2011"
"6. If yes please provide details Not Applicable, in view of"
the information provided in
query No.5
7. Any other information The query is not specific.
8. File notings on movement of this RTI Copy of the note is
petition and on every aspect of this enclosed.
RTI Petition
"11. In the Second Appeal, the CIC heard the respondent via"
telephone and the petitioner through video conferencing. As
14
"directed by CIC, the petitioner filed written submission. The"
CIC directed the CPIO of the Petitioner to provide complete
information in relation to queries 1 2 and 3 of the original
application of the Respondent before 15.12.2011.
"12. In Transfer Case No. 96 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
1. Before the Orissa High Court RBI The Information sought by you is
has filed an affidavit stating that exempted under Section 8(1)(a) & (e)
"the total mark to market losses of RTI Act, which state as under;"
on account of currency
derivatives is to the tune of more 8(1) notwithstanding anything
"than Rs. 32,000 crores Please contained in this Act, there shall be"
give bank wise breakup of the no obligation to give any citizen
MTM Losses
(a) information disclosure of
which would prejudicially affect
the sovereignty and integrity of
India the security strategic
scientific or economic interests of
"the state, relation with foreign"
State or lead to incitement of an
offence.
(e) Information available to a
person in his fiduciary
relationship unless the competent
authority is satisfied that larger
public interest warrants the
disclosure of such information.
2. What is the latest figure available Please refer to our response to 1
with RBI of the amount of losses above.
suffered by Indian Business
15
houses? Please furnish the latest
figures bank wise and customer
wise.
3. Whether the issue of derivative We have no information in this
losses to Indian exporters was matter.
discussed in any of the meetings
of Governor/Deputy Governor or
senior official of the Reserve
Bank of India? If so please
furnish the minutes of the
meeting where the said issue was
discussed
4. Any other Action Taken Reports We have no information in this
by RBI in this regard. matter.
13. The CIC allowed the second appeal and directed the CPIO
FED of the Petitioner to provide complete information in
"queries 1, 2, 9 and 10 of the original application of the"
"Respondent before 05.01.2012. The CPIO, FED complied with"
"the order of the CIC in so far queries 2, 9 and 10 are"
concerned. The RBI filed writ petition for quashing the order of
CIC so far as it directs to provide complete information as per
record on query No.1.
"14. In Transfer Case No. 97 of 2015, the Respondent sought"
following information from the CPIO of National Bank for
16
"Agriculture and Rural Development under the Act of 2005,"
reply to which is tabulated hereunder:-
Sl. Information Sought Reply
No.
1. The report made by NABARD regarding 86 Please refer to your
N.P.A. Accounts for Rs. 3806.95 crore of application dated 19
"Maharashtra State Co-operative Bank Ltd. (if April, 2011 seeking"
any information of my application is not information under the
"available in your Office/Department/ RTI Act, 2005 which"
"Division/Branch, transfer this application to was received by us on"
"the concerned Office/Department/ 06th May, 2011. In"
"Division/Branch and convey me accordingly this connection, we"
as per the provision of Section 6 (3) of Right advise that the
"to Information Act, 2005. questions put forth by"
you relate to the
observations made in
the Inspection Report
of NABARD pertaining
to MSCB which are
confidential in nature.
Since furnishing the
information would
impede the process of
investigation or
apprehension or
prosecution of
"offenders, disclosure"
of the same is
exempted under
Section 8(1)(h) of the
Act.
"15. In Transfer Case No. 98 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
17
Sl. Information Sought Reply
No.
1. What contraventions and violations were The bank was penalized
made by SCB in respect of RBI instructions along with 18 other
on derivatives for which RBI has imposed banks for contravention
penalty of INR 10 lakhs on SCB in exercise of various instructions
of its powers vested under Section 47(1)(b) issued by the Reserve
"of Banking Regulation Act, 1949 and as Bank of India in respect"
"stated in the RBI press release dated April of derivatives, such as,"
"26, 2011 issued by Department of failure to carry out due"
Communications RBI diligence in regard to
"suitability of products,"
selling derivative
products to users not
having risk
management policies
and not verifying the
underlying/adequacy of
underlying and eligible
limits under past
performance route. The
information is also
available on our
website under press
releases.
2. Please provide us the copies/details of all Complaints are received
"the complaints filed with RBI against SCB, by Reserve Bank of"
accusing SCB of mis-selling derivative India and as they
"products, failure to carry out due diligence constitute the third"
"in regard to suitability of products, not party information, the"
verifying the underlying/adequacy of information requested
underlying and eligible limits under past by you cannot be
performance and various other disclosed in terms of
non-compliance of RBI instruction on Section 8(1)(d) of the
"derivatives. RTI Act, 2005."
"Also, please provide the above information"
in the following format
. Date of the complaint
Name of the complaint
Subject matter of the complaint
Brief description of the facts and
accusations made by the complaint.
18
Any other information available with RBI
with respect to violation/contraventions by
SCB of RBI instructions on derivatives.
3. Please provide us the copies of all the The action has been
written replies/correspondences made by taken against the bank
SCB with RBI and the recordings of all the based on the findings of
oral submissions made by SCB to defend the Annual Financial
and explain the violations/contraventions Inspection (AFI) of the
made by SCB bank which is
conducted under the
provisions of Sec.35 of
"the BR Act, 1949. The"
findings of the
inspection are
confidential in nature
intended specifically for
the supervised entities
and for corrective
action by them. The
information is received
by us in fiduciary
capacity disclosure of
which may prejudicially
affect the economic
interest of the state.
As such the
information cannot be
disclosed in terms of
Section 8(1) (a) and (e)
"of the RTI Act, 2005"
4. Please provide us the details/copies of the -do-
"findings recordings, enquiry reports,"
directive orders file notings and/or any
information on the investigations conducted
by RBI against SCB in respect of
non-compliance by SCB thereby
establishing violations by SCBV in respect
of non compliances of RBI instructions on
derivatives.
Please also provide the above information
in the following format.
. Brief violations/contraventions made by
SCB
. In brief SCB replies/defense/explanation
19
against each violations/contraventions
made by it under the show cause notice.
. RBI investigations/notes/on the SCB
Replies/defense/explanations for each of
the violation/contravention made by SCB.
. RBI remarks/findings with regard to the
violations/contraventions made by SCB.
"16. In Transfer Case No. 99 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
"1. That, what action has the department 1. Enquiry was"
taken against scams/financial carried out against
irregularities of United Mercantile scams/financial
Cooperative Bank Ltd as mentioned in the irregularities of United
enclosed published news. Provide day to Mercantile Cooperative
day progress report of the action taken. Bank Ltd. as mentioned
in the enclosed
published news.
2. Note/explanation
has been called for from
the bank vide our letter
"dated 8th July, 2011"
regarding errors
mentioned in enquiry
report.
3. The other
information asked here
is based on the
conclusions of
Inspection Report. We
would like to state that
conclusions found
20
during inspections are
confidential and the
reports are finalized on
the basis of information
received from banks. We
received the information
from banks in a
confident capacity.
"Moreover, disclosure of"
such information may
cause damage to the
banking system and
financial interests of the
state. Disclosure of
such type of information
is exempted under
Section 8(1)(a) and (e) of
"RTI Act, 2005."
2. That permission for opening how many United Mercantile
extension counters was obtained by United Cooperative Bank Ltd.
"Mercantile Cooperative Bank Ltd from RBI. was permitted to open 5,"
Provide details of expenditure incurred for extension counters.
constructing the extension counters. Had
the bank followed tender system for these The information
"constructions, if yes, provide details of regarding expenditure"
concerned tenders. incurred on
construction of these
extension counters and
tenders are not available
with Reserve Bank of
India.
"17. In Transfer Case No. 100 of 2015, the Respondent sought"
following information from the CPIO of RBI under the Act of
"2005, reply to which is tabulated hereunder:-"
21
Sl. Information Sought Reply
No.
1. Under which Grade The George Town The classification of
"Co-operative Bank Ltd., Chennai, has been banks into various"
categorised as on 31.12.2006? grades are done on the
basis of inspection
findings which is based
on information/
documents obtained in
a fiduciary capacity and
cannot be disclosed to
outsiders. It is also
exempted under Section
8(1)(e) of right to
"Information Act, 2005."
"18. The Appellate Authority observed that the CPIO, UBD has"
replied that the classification of banks into various grades is
done on the basis of findings recorded in inspection which are
based on information/documents obtained in a fiduciary
"capacity and cannot be disclosed to outsiders. The CPIO, UBD"
has stated that the same is exempted under Section 8(1)(e) of
RTI Act. Apart from the fact that information sought by the
"appellant is sensitive and cannot be disclosed, it could also"
harm the competitive position of the co-operative bank.
"Therefore, exemption from disclosure of the Information is"
available under Section 8(1)(d) of the RTI Act.
22
"19. In Transfer Case No. 101 of 2015, with regard to"
"Deendayal Nagri Shakari Bank Ltd, District Beed, the"
Respondent sought following information from the CPIO of RBI
"under the Act of 2005, reply to which is tabulated hereunder:-"
Sl. Information Sought Reply
No.
1. Copies of complaints received by RBI Disclosure of
"against illegal working of the said bank, information regarding"
including violations of the Standing complaints received
Orders of RBI as well as the provisions from third parties
"under Section 295 of the Companies Act, would harm the"
1956. competitive position of a
third party. Further
such information is
maintained in a
fiduciary capacity and
is exempted from
disclosure under
Sections 8(1)(d) and (e)
of the RTI Act.
2. Action initiated by RBI against the said (a) A penalty of Rs. 1
"bank, including all correspondence lakh was imposed on"
between RBI and the said bank officials. Deendayal Nagri
Sahakari Bank Ltd. for
violation of directives on
loans to directors/their
relatives/concerns in
which they are
interested. The bank
paid the penalty on
08.10.2010.
(b) As regards
correspondence
"between RBI and the,"
"co-operative bank, it is"
advised that such
information is
maintained by RBI in
fiduciary capacity and
23
hence cannot be given
to outsiders. Moreover
disclosure of such
information may harm
the interest of the bank
and banking system.
Such information is
exempt from disclosure
under Section 8(1)(a)
and (e) of the RTI Act.
"3. Finding of the enquiry made by RBI, Such information is"
actions proposed and taken against the maintained by the bank
"bank and its officials-official notings, in a fiduciary capacity"
"decisions, and final orders passed and and is obtained by RBI"
issued. during the course of
inspection of the bank
and hence cannot be
given to outsiders. The
disclosure of such
information would
harm the competitive
position of a third
party. Such
"information is,"
"therefore, exempted"
from disclosure under
Section 8(1)(d) and (e)
of the RTI Act.
As regards action taken
"against the bank, are"
reply at S. No.2 (a)
above.
4. Confidential letters received by RBI from See reply at S. NO.2 (a)
the Executive Director of Vaishnavi above.
Hatcheries Pvt. Ltd. complaining about
the illegal working and pressure policies of
the bank and its chairman for misusing
the authority of digital signature for
sanction of the backdated resignations of
the chairman of the bank and few other
directors of the companies details of
action taken by RBI on that.
24
20. The First Appellate Authority observed that the CPIO had
furnished the information available on queries 2 and 4.
Further information sought in queries 1 and 3 was exempted
under Section 8(1)(a)(d) and (e) of the RTI Act.
"21. Various transfer petitions were, therefore, filed seeking"
transfer of the writ petitions pending before different High
"Courts. On 30.5.2015, while allowing the transfer petitions"
filed by Reserve Bank of India seeking transfer of various writ
"petitions filed by it in the High Courts of Delhi and Bombay,"
this Court passed the following orders:
"""Notice is served upon the substantial number of"
respondents. Learned counsel for the respondents
"have no objection if Writ Petition Nos. 8400 of 2011,"
"8605 of 2011, 8693 of 2011, 8583 of 2011, 32 of 2012,"
"685 of 2012, 263 of 2012 and 1976 of 2012 pending in"
the High Court of Delhi at New Delhi and Writ Petition
"(L) Nos. 2556 of 2011, 2798 of 2011 and 4897 of 2011"
pending in the High Court of Bombay are transferred
"to this Court and be heard together. In the meanwhile,"
the steps may be taken to serve upon the unserved
respondents.
"Accordingly, the transfer petitions are allowed and the"
above mentioned writ petitions are withdrawn to this
Court. The High Court of Delhi and the High Court of
Bombay are directed to remit the entire record of the
"said writ petitions to this Court within four weeks."""
25
"22. Mr. T.R. Andhyarujina, learned senior counsel appearing"
"for the petitioner-Reserve Bank of India, assailed the"
impugned orders passed by the Central Information
Commissioner as illegal and without jurisdiction. Learned
Counsel referred various provisions of The Reserve Bank of
"India Act, 1934; The Banking Regulation Act, 1949 and The"
"Credit Information Companies (Regulation) Act, 2005 and"
made the following submissions:-
I) The Reserve Bank of India being the statutory
authority has been constituted under the Reserve Bank of
"India Act, 1934 for the purpose of regulating and"
controlling the money supply in the country. It also acts as
statutory banker with the Government of India and State
"Governments and manages their public debts. In addition,"
it regulates and supervises Commercial Banks and
Cooperative Banks in the country. The RBI exercises
"control over the volume of credit, the rate of interest"
chargeable on loan and advances and deposits in order to
ensure the economic stability. The RBI is also vested with
"the powers to determine ""Banking Policy"" in the interest of"
"banking system, monetary stability and sound economic"
growth.
The RBI in exercise of powers of powers conferred under
"Section 35 of the Banking Regulation Act, 1949 conducts"
inspection of the banks in the country.
II) The RBI in its capacity as the regulator and
supervisor of the banking system of the country access to
various information collected and kept by the banks. The
inspecting team and the officers carry out inspections of
different banks and much of the information accessed by
the inspecting officers of RBI would be confidential.
"Referring Section 28 of the Banking Regulation Act, it was"
submitted that the RBI in the public interest may publish
26
"the information obtained by it, in a consolidated form but"
not otherwise.
III) The role of RBI is to safeguard the economic and
financial stability of the country and it has large contingent
of expert advisors relating to matters deciding the economy
of the entire country and nobody can doubt the bona fide of
"the bank. In this connection, learned counsel referred the"
decision of this Court in the case of Peerless General
Finance and Investment Co. Limited and Another Vs.
"Reserve Bank of India, 1992 Vol. 2 SCC 343."
IV) Referring the decision in the case of B.
Suryanarayana Vs. N. 1453 The Kolluru Parvathi
"Co-Op. Bank Ltd., 1986 AIR (AP) 244, learned counsel"
submitted that the Court will be highly chary to enter into
and interfere with the decision of Reserve Bank of India.
Learned Counsel also referred to the decision in the case of
Peerless General Finance and Investment Co. Limited
"and Another Vs. Reserve Bank of India, 1992 Vol. 2 SCC"
343 and contended that Courts are not to interfere with the
economic policy which is a function of the experts.
V) That the RBI is vested with the responsibility of
regulation and supervision of the banking system. As part
"of its supervisory role, RBI supervises and monitors the"
banks under its jurisdiction through on-site inspection
conducted on annual basis under the statutory powers
derived by it under section 35 of the Banking Regulation
"Act 1949, off-site returns on key financial parameters and"
engaging banks in dialogue through periodical meetings.
RBI may take supervisory actions where warranted for
violations of its guidelines/directives. The supervisory
"actions would depend on the seriousness of the offence,"
systemic implications and may range from imposition of
"penalty, to issue of strictures or letters of warning. While"
RBI recognizes and promotes enhanced transparency in
"banks disclosures to the public, as transparency"
"strengthens market discipline, a bank may not be able to"
disclose all data that may be relevant to assess its risk
"profile, due to the inherent need to preserve confidentially"
"in relation to its customers. In this light, while mandatory"
disclosures include certain prudential parameters such as
"capital adequacy, level of Non Performing Assets etc., the"
supervisors themselves may not disclose all or some
"information obtained on-site or off-site. In some countries,"
"wherever there are supervisory concerns, ""prompt corrective"
"action"" programmes are normally put in place, which may"
or may not be publicly disclosed. Circumspection in
disclosures by the supervisors arises from the potential
"market reaction that such disclosure might trigger, which"
27
"may not be desirable. Thus, in any policy of transparency,"
there is a need to build processes which ensure that the
benefits of supervisory disclosure are appropriately weighed
"against the risk to stakeholders, such as depositors."
"VI) As per the RBI policy, the reports of the annual"
"financial inspection, scrutiny of all banks/ financial"
institutions are confidential document cannot be disclosed.
"As a matter of fact, the annual financial inspection/"
scrutiny report reflect the supervisor’s critical assessment
of banks and financial institutions and their functions.
Disclosure of these scrutiny and information would create
misunderstanding/ misinterpretation in the minds of the
"public. That apart, this may prove significantly counter"
productive. Learned counsel submitted that the disclosure
of information sought for by the applicant would not serve
the public interest as it will give adverse impact in public
confidence on the bank. This has serious implication for
financial stability which rests on public confidence. This
will also adversely affect the economic interest of the State
and would not serve the larger public interest.
23. The specific stand of petitioner Reserve Bank of India is
that the information sought for is exempted under Section 8(1)
"(a), (d) and (e) of the Right to Information Act, 2005. As the"
"regulator and supervisor of the banking system, the RBI has"
discretion in the disclosure of such information in public
interest.
"24. Mr. Andhyarujina, learned senior counsel, referred"
various decisions to the High Court and submitted that the
disclosure of information would prejudicially affect the
"economic interest of the State. Further, if the information"
28
sought for is sensitive from the point of adverse market
reaction leading to systematic crisis for financial stability.
25. Learned senior counsel put heavy reliance on the Full
Bench decision of the Central Information Commissioner and
"submitted that while passing the impugned order, the Central"
Information Commissioner completely overlooked the Full
Bench decision and ignored the same. According to the
"learned counsel, the Bench, which passed the impugned"
"order, is bound to follow the Full Bench decision. The"
Commission also erred in holding that the Full Bench decision
is per incuriam as the Full Bench has not considered the
statutory provisions of Section 8 (2) of the Right to Information
"Act, 2005."
26. Learned senior counsel also submitted that the
Commission erred in holding that even if the information
"sought for is exempted under Section 8(1) (a), (d) or (e) of the"
"Right to Information Act, Section 8(2) of the RTI Act would"
mandate the disclosure of the information.
29
27. Learned senior counsel further submitted that the basic
"question of law is whether the Right to Information Act, 2005"
overrides various provisions of special statutes which confer
confidentiality in the information obtained by the RBI.; If the
"Respondents are right in their contention, these statutory"
"provisions of confidentiality in the Banking Regulation Act,"
"1949, the Reserve Bank of India Act, 1934 and the Credit"
"Information Companies (Regulation) Act, 2005 would be"
"repealed or overruled by the Right to Information Act, 2005."
"28. Under the Banking Regulation Act, 1949, the Reserve"
Bank of India has a right to obtain information from the banks
under Section 27. These information can only be in its
discretion published in such consolidated form as RBI deems
fit. Likewise under Section 34A production of documents of
confidential nature cannot be compelled. Under sub-section
"(5) of Section 35, the Reserve Bank of India may carry out"
inspection of any bank but its report can only be disclosed if
the Central Government orders the publishing of the report of
the Reserve Bank of India when it appears necessary.
30
"29. Under Section 45E of the Reserve Bank of India Act,"
"1934, disclosure of any information relating to credit"
information submitted by banking company is confidential
and under Section 45E(3) notwithstanding anything contained
"in any law no court, tribunal or authority can compel the"
Reserve Bank of India to give information relating to credit
information etc.
30. Under Section 17(4) of the Credit Information Companies
"(Regulation) Act, 2005, credit information received by the"
credit information company cannot be disclosed to any person.
"Under Section 20, the credit information company has to"
adopt privacy principles and under Section 22 there cannot be
unauthorized access to credit information.
31. It was further contended that the Credit Information
"Companies Act, 2005 was brought into force after the Right to"
"Information act, 2005 w.e.f. 14.12.2006. It is significant to"
"note that Section 28 of Banking Regulation Act, 1949 was"
amended by the Credit Information Companies (Regulation)
"Act, 2005. This is a clear indication that the Right to"
31
"Information Act, 2005 cannot override credit information"
sought by any person in contradiction to the statutory
provisions for confidentiality.
32. This is in addition to other statutory provisions of privacy
"in Section 44 of State Bank of India Act, 1955, Section 52,"
"State Bank of India (Subsidiary Banks) Act, 1959, Section 13"
of the Banking Companies (Acquisition & Transfer of
"Undertakings) Act, 1970."
"33. The Right to Information Act, 2005 is a general provision"
which cannot override specific provisions relating to
confidentiality in earlier legislation in accordance with the
principle that where there are general words in a later statute
it cannot be held that the earlier statutes are repealed altered
or discarded.
34. Learned counsel submitted that Section 22 of the Right
"to Information Act, 2005 cannot have the effect of nullifying"
and repealing earlier statutes in relation to confidentiality.
This has been well settled by this Court in
32
a) Raghunath vs. state of Karnataka 1992(1) SCC
335 at p.348 pages 112 and 114
"b) ICICI Bank vs. SIDCO Leather etc., 2006(10)"
"SCC 452 at p. 466, paras 36 & 37"
"c) Central Bank vs. Kerala, 2009 (4) SCC 94 at p."
132-133 para 104
"d) AG Varadharajalu vs. Tamil Nadu, 1998 (4)"
SCC 231 at p. 236 para 16.
"Hence, the Right to Information Act, 2005 cannot override the"
provisions for confidentiality conferred on the RBI by the
earlier statutes referred to above.
"35. The Preamble of the RTI Act, 2005 itself recognizes the"
fact that since the revealing of certain information is likely to
"conflict with other public interests like ""the preservation of"
"confidentiality of sensitive information"", there is a need to"
harmonise these conflicting interests. It is submitted that
certain exemptions were carved out in the RTI Act to
harmonise these conflicting interests. This Court in Central
Board of Secondary Education and Anr. vs. Aditya
"Bandopadhyay and Ors, (2011)8 SCC 497, has observed as"
under:-
33
"""When trying to ensure that the right to information"
does not conflict with several other public interests (which
"includes efficient operations of the Governments,"
"preservation of confidentiality of sensitive information,"
"optimum use of limited fiscal resources, etc.), it is difficult"
to visualise and enumerate all types of information which
require to be exempted from disclosure in public interest.
The legislature has however made an attempt to do so. The
enumeration of exemptions is more exhaustive than the
"enumeration of exemptions attempted in the earlier Act,"
"that is, Section 8 of the Freedom to Information Act, 2002."
The courts and Information Commissions enforcing the
provisions of the RTI Act have to adopt a purposive
"construction, involving a reasonable and balanced"
"approach which harmonises the two objects of the Act,"
while interpreting Section 8 and the other provisions of the
"Act."""
36. Apart from the legal position that the Right to
"Information Act, 2005 does not override statutory provisions"
"of confidentiality in other Act, it is submitted that in any case"
"Section 8(1)(a) of the Right to Information Act, 2005 states"
that there is no obligation to give any information which
pre-judiciously affects the economic interests of the States.
Disclosure of such vital information relating to banking would
pre-judiciously affect the economic interests of the State. This
was clearly stated by the Full Bench of the Central Information
Commission by its Order in the case of Ravin Ranchchodlal
Patel (supra). Despite this emphatic ruling individual
Commissioners of the Information have disregarded it by
34
holding that the decision of the Full Bench was per incurium
and directed disclosure of information.
"37. Other exceptions in Section 8, viz 8(1)(a)(d), 8(1)(e) would"
"also apply to disclosure by the RBI and banks. In sum,"
learned senior counsel submitted that the RBI cannot be
directed to disclose information relating to banking under the
"Right to Information Act, 2005."
"38. Mr. Prashant Bhushan, learned counsel appearing for"
"the respondents in Transfer Case Nos.94 & 95 of 2015, began"
his arguments by referring the Preamble of the Constitution
and submitted that through the Constitution it is the people
"who have created legislatures, executives and the judiciary to"
exercise such duties and functions as laid down in the
constitution itself.
39. The right to information regarding the functioning of
public institutions is a fundamental right as enshrined in
Article 19 of the Constitution of India. This Hon’ble Court has
declared in a plethora of cases that the most important value
35
for the functioning of a healthy and well informed democracy
is transparency. Mr. Bhushan referred Constitution Bench
judgment of this Court in the case of State of U.P. vs. Raj
"Narain, AIR 1975 SC 865, and submitted that it is a"
"Government’s responsibility like ours, where all the agents of"
"the public must be responsible for their conduct, there can be"
but few secrets. The people of this country have a right to
"know every public act, everything that is done in a public way,"
"by their functionaries. The right to know, which is derived"
"from the concept of freedom of speech, though not absolute, is"
"a factor which should make one wary, when secrecy is claimed"
"for transactions which can, at any rate, have no repercussion"
"on public security. To cover with veil of secrecy, the common"
routine business is not in the interest of public.
40. In the case of S.P. Gupta v. President of India and
"Ors., AIR 1982 SC 149, a seven Judge Bench of this Court"
made the following observations regarding the right to
information:-
"""There is also in every democracy a certain amount of"
"public suspicion and distrust of Government, varying of"
"course from time to time according to its performance,"
36
which prompts people to insist upon maximum exposure of
its functioning. It is axiomatic that every action of the
Government must be actuated by public interest but even
"so we find cases, though not many, where Governmental"
action is taken not for public good but for personal gain or
other extraneous considerations. Sometimes Governmental
action is influenced by political and other motivations and
"pressures and at times, there are also instances of misuse"
"or abuse of authority on the part of the executive. Now, if"
secrecy were to be observed in the functioning of
Government and the processes of Government were to be
"kept hidden from public scrutiny, it would tend to promote"
"and encourage oppression, corruption and misuse or abuse"
"of authority, for it would all be shrouded in the veil of"
secrecy without any public accountability. But if there is an
open Government with means of information available to
"the public, there would be greater exposure of the"
functioning of Government and it would help to assure the
people a better and more efficient administration. There can
be little doubt that exposure to public gaze and scrutiny is
one of the surest means of achieving a clean and healthy
administration. It has been truly said that an open
Government is clean Government and a powerful safeguard
against political and administrative aberration and
"inefficiency."""
41. In the case of the Union of India vs. Association for
"Democratic Reforms, AIR 2002 SC 2112, while declaring that"
it is part of the fundamental right of citizens under Article
19(1)(a) to know the assets and liabilities of candidates
"contesting election to the Parliament or the State Legislatures,"
a three Judge Bench of this Court held unequivocally that:-
"""The right to get information in a democracy is recognized all"
throughout and is a natural right flowing from the concept of
"democracy (Para 56)."" Thereafter, legislation was passed"
37
"amending the Representation of People Act, 1951 that"
candidates need not provide such information. This Court in
"the case of PUCL vs. Union of India, (2003) 4 SCC 399,"
"struck down that legislation by stating: ""It should be properly"
understood that the fundamental rights enshrined in the
"Constitution such as, right to equality and freedoms have no"
"fixed contents. From time to time, this Court has filled in the"
skeleton with soul and blood and made it vibrant. Since the
"last more than 50 years, this Court has interpreted Articles"
"14, 19 and 21 and given meaning and colour so that the"
"nation can have a truly republic democratic society."""
"42. The RTI Act, 2005, as noted in its very preamble, does"
not create any new right but only provides machinery to
effectuate the fundamental right to information. The
institution of the CIC and the SICs are part of that machinery.
"The preamble also inter-alia states ""... democracy requires an"
informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to
38
hold Governments and their instrumentalities accountable to
"the governed."""
43. The submission of the RBI that exceptions be carved out
of the RTI Act regime in order to accommodate provisions of
RBI Act and Banking Regulation Act is clearly misconceived.
"RTI Act, 2005 contains a clear provision (Section 22) by virtue"
of which it overrides all other Acts including Official Secrets
"Act. Thus, notwithstanding anything to the contrary"
contained in any other law like RBI Act or Banking Regulation
"Act, the RTI Act, 2005 shall prevail insofar as transparency"
"and access to information is concerned. Moreover, the RTI Act"
"2005, being a later law, specifically brought in to usher"
transparency and to transform the way official business is
"conducted, would have to override all earlier practices and"
laws in order to achieve its objective. The only exceptions to
access to information are contained in RTI Act itself in
Section 8.
39
"44. In T.C.No.94 of 2015, the RTI applicant Mr. P.P. Kapoor"
had asked about the details of the loans taken by the
"industrialists that have not been repaid, and he had asked"
about the names of the top defaulters who have not repaid
their loans to public sector banks. The RBI resisted the
disclosure of the information claiming exemption under
Section 8(1) (a) and 8(1)(e) of the RTI Act on the ground that
"disclosure would affect the economic interest of the country,"
and that the information has been received by the RBI from
the banks in fiduciary capacity. The CIC found these
arguments made by RBI to be totally misconceived in facts and
"in law, and held that the disclosure would be in public"
interest.
"45. In T.C.No.95 of 2015, the RTI applicant therein Mr."
Subhash Chandra Agrawal had asked about the details of the
show cause notices and fines imposed by the RBI on various
banks. The RBI resisted the disclosure of the information
"claiming exemption under Section 8(1)(a),(d) and 8(1) (e) of the"
RTI Act on the ground that disclosure would affect the
40
"economic interest of the country, the competitive position of"
the banks and that the information has been received by RBI
"in fiduciary capacity. The CIC, herein also, found these"
arguments made by RBI to be totally misconceived in facts and
in law and held that the disclosure would be in public interest.
46. In reply to the submission of the petitioner about
"fiduciary relationship, learned counsel submitted that the"
scope of Section 8(1)(e) of the RTI Act has been decided by this
Court in Central Board of Secondary Education vs. Aditya
"Bandopadhyay, (2011) 8 SCC 497, wherein, while rejecting"
the argument that CBSE acts in a fiduciary capacity to the
"students, it was held that:"
"""...In a philosophical and very wide sense, examining bodies"
"can be said to act in a fiduciary capacity, with reference to"
"students who participate in an examination, as a"
Government does while governing its citizens or as the
present generation does with reference to the future
generation while preserving the environment. But the word
‘information available to a person in his fiduciary
relationship’ are used in Section 8(1) (e) of the RTI Act in its
"normal and well recognized sense, that is to refer to persons"
"who act in a fiduciary capacity, with reference to specific"
beneficiary or beneficiaries who are to be expected to be
"protected or benefited by the action of the fiduciary."""
41
47. We have extensively heard all the counsels appearing for
the petitioner Banks and respondents and examined the law
and the facts.
"48. While introducing the Right to Information Bill, 2004 a"
serious debate and discussion took place. The then Prime
Minister while addressing the House informed that the RTI Bill
is to provide for setting out practical regime of right to
"information for people, to secure access to information under"
the control of public authorities in order to promote
transparency and accountability in the working of every public
authority. The new legislation would radically alter the ethos
and culture of secrecy through ready sharing of information by
the State and its agencies with the people. An era of
transparency and accountability in governance is on the anvil.
"Information, and more appropriately access to information"
would empower and enable people not only to make informed
choices but also participate effectively in decision making
processes. Tracing the origin of the idea of the then Prime
"Minister who had stated, ""Modern societies are information"
42
societies. Citizens tend to get interested in all fields of life and
"demand information that is as comprehensive, accurate and"
"fair as possible."" In the Bill, reference has also been made to"
the decision of the Supreme Court to the effect that Right to
Information has been held as inherent in Article 19 of our
"Constitution, thereby, elevating it to a fundamental right of the"
"citizen. The Bill, which sought to create an effective"
"mechanism for easy exercise of this Right, was held to have"
"been properly titled as ""Right to Information Act"". The Bill"
further states that a citizen has to merely make a request to
the concerned Public Information Officer specifying the
particulars of the information sought by him. He is not
"required to give any reason for seeking information, or any"
other personal details except those necessary for contacting
"him. Further, the Bill states:-"
"""The categories of information exempted from"
disclosure are a bare minimum and are contained in
clause 8 of the Bill. Even these exemptions are not
absolute and access can be allowed to them in public
interest if disclosure of the information outweighs
the harm to the public authorities. Such disclosure
has been permitted even if it is in conflict with the
"provisions of the Official Secrets Act, 1923."
"Moreover, barring two categories that relate to"
information disclosure - which may affect
43
"sovereignty and integrity of India etc., or information"
relating to Cabinet papers etc.-all other categories of
exempted information would be disclosed after
twenty years.
There is another aspect about which information is
to be made public. We had a lengthy discussion and
it is correctly provided in the amendment under
clause 8 of the Bill. The following information shall
be exempted from disclosure which would
prejudicially affect the sovereignty and integrity of
India; which has been expressly forbidden; which
may result in a breach of privileges of Parliament or
the Legislature; and also information pertaining to
defence matters. They are listed in clause 8 (a) to (g).
There are exceptions to this clause. Where it is
considered necessary that the information will be
"divulged in the interest of the State, that will be"
done. There must be transparency in public life.
There must be transparency in administration and
people must have a right to know what has actually
transpired in the secretariat of the State as well as
the Union Ministry. A citizen will have a right
because it will be safe to prevent corruption. Many
things are done behind the curtain. Many shoddy
deals take place in the secretariats of the Central
and State Governments and the information will
always be kept hidden. Such practice should not be
allowed in a democratic country like ours. Ours is a
republic. The citizenry should have a right to know
what transpired in the secretariat. Even Cabinet
"papers, after a decision has been taken, must be"
divulged as per the provisions of this amendment. It
"cannot be hidden from the knowledge of others."""
"49. Addressing the House, it was pointed out by the then"
"Prime Minister that in our country, Government expenditure"
both at the Central and at the level of the States and local
"bodies, account for nearly 33% of our Gross National Product."
"At the same time, the socio-economic imperatives require our"
44
Government to intervene extensively in economic and social
"affairs. Therefore, the efficiency and effectiveness of the"
"government processes are critical variables, which will"
determine how our Government functions and to what extent
it is able to discharge the responsibilities entrusted. It was
pointed out that there are widespread complaints in our
"country about wastefulness of expenditure, about corruption,"
and matter which have relations with the functioning of the
"Government. Therefore, it was very important to explore new"
effective mechanism to ensure that the Government will
purposefully and effectively discharge the responsibilities
entrusted to it.
50. Finally the Right to Information Act was passed by the
"Parliament called ""The Right to Information Act, 2005"". The"
Preamble states:-
"""An Act to provide for setting out the practical"
regime of right to information for citizens to secure
access to information under the control of public
"authorities, in order to promote transparency and"
accountability in the working of every public
"authority, the constitution of a Central Information"
Commission and State Information Commissions and
for matters connected therewith or incidental
thereto.
45
WHEREAS the Constitution of India has
established democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of information
which are vital to its functioning and also to contain
corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in
actual practice is likely to conflict with other public
interests including efficient operations of the
"Governments, optimum use of limited fiscal"
resources and the preservation of confidentiality of
sensitive information;
AND WHEREAS it is necessary to harmonise
these conflicting interest while preserving the
paramountcy of the democratic ideal;
"NOW, THEREFORE, it is expedient to provide"
for furnishing certain information to citizens who
"desire to have it."""
51. Section 2 of the Act defines various authorities and the
words. Section 2(j) defines right to information as under :-
"""2(j) ""right to information"" means the right to"
information accessible under this Act which is held
by or under the control of any public authority and
includes the right to-
"(i) inspection of work, documents, records;"
"(ii) taking notes, extracts, or certified"
copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of
"diskettes, floppies, tapes, video"
cassettes or in any other electronic
mode or through printouts where such
information is stored in a computer or
"in any other device;"""
46
52. Section 3 provides that all citizens shall have the right to
information subject to the provisions of this Act. Section 4
makes it obligatory on all public authorities to maintain
records in the manner provided therein. According to Section
"6, a person who desires to obtain any information under the"
Act shall make a request in writing or through electronic
means in English or Hindi in the official language of the area
in which the application is being made to the competent
authority specifying the particulars of information sought by
him or her. Sub-section (ii) of Section 6 provides that the
applicant making request for information shall not be required
to give any reason for requesting the information or any other
personal details except those that may be necessary for
contacting him. Section 7 lays down the procedure for
disposal of the request so made by the person under Section 6
"of the Act. Section 8, however, provides certain exemption"
from disclosure of information. For better appreciation
Section 8 is quoted hereinbelow:-
47
"""8. Exemption from disclosure of information.--"
"(1) Notwithstanding anything contained in this Act,"
"there shall be no obligation to give any citizen,--"
"(a) information, disclosure of which would prejudicially"
"affect the sovereignty and integrity of India, the"
"security, strategic, scientific or economic interests of"
"the State, relation with foreign State or lead to"
incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
"(c) information, the disclosure of which would cause a"
breach of privilege of Parliament or the State
Legislature;
"(d) information including commercial confidence, trade"
"secrets or intellectual property, the disclosure of which"
"would harm the competitive position of a third party,"
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary
"relationship, unless the competent authority is"
satisfied that the larger public interest warrants the
disclosure of such information;
(f) information received in confidence from foreign
government;
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or
identify the source of information or assistance given
in confidence for law enforcement or security
purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
"the Council of Ministers, Secretaries and other officers:"
"Provided that the decisions of Council of Ministers, the"
"reasons thereof, and the material on the basis of which"
the decisions were taken shall be made public after the
"decision has been taken, and the matter is complete,"
or over: Provided further that those matters which
come under the exemptions specified in this section
shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has not relationship to any
48
"public activity or interest, or which would cause"
unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the
State Public Information Officer or the appellate
"authority, as the case may be, is satisfied that the"
larger public interest justifies the disclosure of such
"information: Provided that the information, which"
cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
"Act, 1923 (19 of 1923) nor any of the exemptions"
"permissible in accordance with sub-section (1), a"
"public authority may allow access to information, if"
public interest in disclosure outweighs the harm to the
protected interests.
"(3) Subject to the provisions of clauses (a), (c) and (i) of"
"sub-section (1), any information relating to any"
"occurrence, event or matter which has taken place,"
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section: Provided that where any question arises as to
the date from which the said period of twenty years
"has to be computed, the decision of the Central"
"Government shall be final, subject to the usual"
"appeals provided for in this Act."""
53. The information sought for by the respondents from the
petitioner-Bank have been denied mainly on the ground that
such information is exempted from disclosure under Section
8(1)(a)(d) and (e) of the RTI Act.
54. Learned counsel appearing for the petitioner-Bank
mainly relied upon Section 8(1)(e) of the RTI Act taking the
49
stand that the Reserve Bank of India having fiduciary
relationship with the other banks and that there is no reason
to disclose such information as no larger public interest
"warrants such disclosure. The primary question therefore, is,"
whether the Reserve Bank of India has rightly refused to
disclose information on the ground of its fiduciary relationship
with the banks.
"55. The Advanced Law Lexicon, 3rd Edition, 2005, defines"
"fiduciary relationship as ""a relationship in which one person is"
under a duty to act for the benefit of the other on the matters
within the scope of the fiduciary relationship. Fiduciary
relationship usually arise in one of the four situations (1)
when one person places trust in the faithful integrity of
"another, who as a result gains superiority or influence over the"
"first, (2) when one person assumes control and responsibility"
"over another, (3) when one person has a duty to act or give"
advice to another on matters falling within the scope of the
"relationship, or (4) when there is specific relationship that has"
50
"traditionally be recognized as involving fiduciary duties, as"
"with a lawyer and a client, or a stockbroker and a customer."""
56. The scope of the fiduciary relationship consists of the
following rules:
"""(i) No Conflict rule- A fiduciary must not place"
himself in a position where his own interests conflicts
with that of his customer or the beneficiary. There
"must be ""real sensible possibility of conflict."
(ii) No profit rule- a fiduciary must not profit from
"his position at the expense of his customer, the"
beneficiary;
(iii) Undivided loyalty rule- a fiduciary owes
"undivided loyalty to the beneficiary, not to place"
himself in a position where his duty towards one
person conflicts with a duty that he owes to another
customer. A consequence of this duty is that a
fiduciary must make available to a customer all the
information that is relevant to the customer’s affairs
(iv) Duty of confidentiality- a fiduciary must only
use information obtained in confidence and must not
"use it for his own advantage, or for the benefit of"
"another person."""
57. The term fiduciary relationship has been well discussed
by this Court in the case of Central Board of Secondary
Education and Anr. vs. Aditya Bandopadhyay and Ors.
"(supra). In the said decision, their Lordships referred various"
authorities to ascertain the meaning of the term fiduciary
relationship and observed thus:-
51
"""20.1) Black’s Law Dictionary (7th Edition, Page 640)"
defines ‘fiduciary relationship’ thus:
"""A relationship in which one person is under a duty to"
act for the benefit of the other on matters within the
scope of the relationship. Fiduciary relationships -
"such as trustee-beneficiary, guardian-ward,"
"agent-principal, and attorney-client - require the"
highest duty of care. Fiduciary relationships usually
arise in one of four situations : (1) when one person
"places trust in the faithful integrity of another, who as"
"a result gains superiority or influence over the first, (2)"
when one person assumes control and responsibility
"over another, (3) when one person has a duty to act for"
or give advice to another on matters falling within the
"scope of the relationship, or (4) when there is a specific"
relationship that has traditionally been recognized as
"involving fiduciary duties, as with a lawyer and a client"
"or a stockbroker and a customer."""
20.2) The American Restatements (Trusts and Agency)
define ‘fiduciary’ as one whose intention is to act for
the benefit of another as to matters relevant to the
relation between them. The Corpus Juris Secundum
(Vol. 36A page 381) attempts to define fiduciary thus :
"""A general definition of the word which is sufficiently"
comprehensive to embrace all cases cannot well be
"given. The term is derived from the civil, or Roman, law."
"It connotes the idea of trust or confidence,"
"contemplates good faith, rather than legal obligation, as"
"the basis of the transaction, refers to the integrity, the"
"fidelity, of the party trusted, rather than his credit or"
"ability, and has been held to apply to all persons who"
"occupy a position of peculiar confidence toward others,"
and to include those informal relations which exist
"whenever one party trusts and relies on another, as"
well as technical fiduciary relations.
"The word ‘fiduciary,’ as a noun, means one who holds a"
"thing in trust for another, a trustee, a person holding"
"the character of a trustee, or a character analogous to"
"that of a trustee, with respect to the trust and"
confidence involved in it and the scrupulous good faith
"and candor which it requires; a person having the duty,"
"created by his undertaking, to act primarily for"
52
another’s benefit in matters connected with such
"undertaking. Also more specifically, in a statute, a"
"guardian, trustee, executor, administrator, receiver,"
"conservator, or any person acting in any fiduciary"
"capacity for any person, trust, or estate. Some"
"examples of what, in particular connections, the term"
has been held to include and not to include are set out
"in the note."""
"20.3) Words and Phrases, Permanent Edition (Vol. 16A,"
Page 41) defines ‘fiducial relation’ thus :
"""There is a technical distinction between a ‘fiducial"
relation’ which is more correctly applicable to legal
"relationships between parties, such as guardian and"
"ward, administrator and heirs, and other similar"
"relationships, and ‘confidential relation’ which includes"
"the legal relationships, and also every other"
relationship wherein confidence is rightly reposed and
is exercised.
"Generally, the term ‘fiduciary’ applies to any person"
who occupies a position of peculiar confidence towards
another. It refers to integrity and fidelity. It
"contemplates fair dealing and good faith, rather than"
"legal obligation, as the basis of the transaction. The"
term includes those informal relations which exist
"whenever one party trusts and relies upon another, as"
"well as technical fiduciary relations."""
20.4) In Bristol and West Building Society vs. Mothew
[1998 Ch. 1] the term fiduciary was defined thus :
"""A fiduciary is someone who has undertaken to act for"
and on behalf of another in a particular matter in
circumstances which give rise to a relationship of trust
and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty..... A fiduciary must
act in good faith; he must not make a profit out of his
trust; he must not place himself in a position where his
duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without
"the informed consent of his principal."""
53
20.5) In Wolf vs. Superior Court [2003 (107) California
"Appeals, 4th 25] the California Court of Appeals defined"
fiduciary relationship as under :
"""any relationship existing between the parties to the"
transaction where one of the parties is duty bound to
act with utmost good faith for the benefit of the other
party. Such a relationship ordinarily arises where
confidence is reposed by one person in the integrity of
"another, and in such a relation the party in whom the"
"confidence is reposed, if he voluntarily accepts or"
"assumes to accept the confidence, can take no"
advantage from his acts relating to the interests of the
other party without the latter’s knowledge and
"consent."""
21. The term ‘fiduciary’ refers to a person having a duty
"to act for the benefit of another, showing good faith and"
"condour, where such other person reposes trust and"
special confidence in the person owing or discharging
the duty. The term ‘fiduciary relationship’ is used to
describe a situation or transaction where one person
(beneficiary) places complete confidence in another
"person (fiduciary) in regard to his affairs, business or"
transaction/s. The term also refers to a person who
holds a thing in trust for another (beneficiary). The
fiduciary is expected to act in confidence and for the
"benefit and advantage of the beneficiary, and use good"
faith and fairness in dealing with the beneficiary or the
things belonging to the beneficiary. If the beneficiary
"has entrusted anything to the fiduciary, to hold the"
thing in trust or to execute certain acts in regard to or
"with reference to the entrusted thing, the fiduciary has"
to act in confidence and expected not to disclose the
thing or information to any third party. There are also
certain relationships where both the parties have to act
in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-‘-vis
another partner and an employer vis-‘-vis employee.
An employee who comes into possession of business or
trade secrets or confidential information relating to the
"employer in the course of his employment, is expected"
to act as a fiduciary and cannot disclose it to others.
"Similarly, if on the request of the employer or official"
"superior or the head of a department, an employee"
54
"furnishes his personal details and information, to be"
"retained in confidence, the employer, the official"
superior or departmental head is expected to hold such
"personal information in confidence as a fiduciary, to be"
made use of or disclosed only if the employee’s conduct
"or acts are found to be prejudicial to the employer."""
"58. In the instant case, the RBI does not place itself in a"
"fiduciary relationship with the Financial institutions (though,"
"in word it puts itself to be in that position) because, the"
"reports of the inspections, statements of the bank, information"
related to the business obtained by the RBI are not under the
pretext of confidence or trust. In this case neither the RBI nor
the Banks act in the interest of each other. By attaching an
"additional ""fiduciary"" label to the statutory duty, the"
Regulatory authorities have intentionally or unintentionally
created an in terrorem effect.
59. RBI is a statutory body set up by the RBI Act as India’s
Central Bank. It is a statutory regulatory authority to oversee
the functioning of the banks and the country’s banking sector.
"Under Section 35A of the Banking Regulation Act, RBI has"
been given powers to issue any direction to the banks in
55
"public interest, in the interest of banking policy and to secure"
proper management of a banking company. It has several
other far-reaching statutory powers.
60. RBI is supposed to uphold public interest and not the
interest of individual banks. RBI is clearly not in any fiduciary
relationship with any bank. RBI has no legal duty to
maximize the benefit of any public sector or private sector
"bank, and thus there is no relationship of ‘trust’ between"
them. RBI has a statutory duty to uphold the interest of the
"public at large, the depositors, the country’s economy and the"
"banking sector. Thus, RBI ought to act with transparency and"
not hide information that might embarrass individual banks.
It is duty bound to comply with the provisions of the RTI Act
and disclose the information sought by the respondents
herein.
61. The baseless and unsubstantiated argument of the RBI
that the disclosure would hurt the economic interest of the
"country is totally misconceived. In the impugned order, the"
CIC has given several reasons to state why the disclosure of
56
the information sought by the respondents would hugely serve
"public interest, and non-disclosure would be significantly"
detrimental to public interest and not in the economic interest
"of India. RBI’s argument that if people, who are sovereign, are"
made aware of the irregularities being committed by the banks
"then the country’s economic security would be endangered, is"
not only absurd but is equally misconceived and baseless.
62. The exemption contained in Section 8(1)(e) applies to
exceptional cases and only with regard to certain pieces of
"information, for which disclosure is unwarranted or"
undesirable. If information is available with a regulatory
"agency not in fiduciary relationship, there is no reason to"
"withhold the disclosure of the same. However, where"
information is required by mandate of law to be provided to an
"authority, it cannot be said that such information is being"
"provided in a fiduciary relationship. As in the instant case,"
the Financial institutions have an obligation to provide all the
information to the RBI and such an information shared under
an obligation/ duty cannot be considered to come under the
57
purview of being shared in fiduciary relationship. One of the
"main characteristic of a Fiduciary relationship is ""Trust and"
"Confidence"". Something that RBI and the Banks lack between"
them.
"63. In the present case, we have to weigh between the public"
interest and fiduciary relationship (which is being shared
"between the RBI and the Banks). Since, RTI Act is enacted to"
"empower the common people, the test to determine limits of"
Section 8 of RTI Act is whether giving information to the
general public would be detrimental to the economic interests
of the country? To what extent the public should be allowed to
get information?
"64. In the context of above questions, it had long since come"
to our attention that the Public Information Officers (PIO)
under the guise of one of the exceptions given under Section 8
"of RTI Act, have evaded the general public from getting their"
hands on the rightful information that they are entitled to.
58
65. And in this case the RBI and the Banks have sidestepped
the General public’s demand to give the requisite information
"on the pretext of ""Fiduciary relationship"" and ""Economic"
"Interest"". This attitude of the RBI will only attract more"
suspicion and disbelief in them. RBI as a regulatory authority
should work to make the Banks accountable to their actions.
"66. Furthermore, the RTI Act under Section 2(f) clearly"
"provides that the inspection reports, documents etc. fall under"
"the purview of ""Information"" which is obtained by the public"
"authority (RBI) from a private body. Section 2(f), reads thus:"
"""information"" means any material in any form,"
"including records, documents, memos, e-mails,"
"opinions, advices, press releases, circulars,"
"orders, logbooks, contracts, reports, papers,"
"samples, models, data material held in any"
electronic form and information relating to any
private body which can be accessed by a public
authority under any other law for the time being
in force;
67. From reading of the above section it can be inferred that
the Legislature’s intent was to make available to the general
public such information which had been obtained by the
public authorities from the private body. Had it been the case
59
where only information related to public authorities was to be
"provided, the Legislature would not have included the word"
"""private body"". As in this case, the RBI is liable to provide"
information regarding inspection report and other documents
to the general public.
68. Even if we were to consider that RBI and the Financial
"Institutions shared a ""Fiduciary Relationship"", Section 2(f)"
would still make the information shared between them to be
accessible by the public. The facts reveal that Banks are trying
"to cover up their underhand actions, they are even more liable"
to be subjected to public scrutiny.
69. We have surmised that many Financial Institutions have
resorted to such acts which are neither clean nor transparent.
The RBI in association with them has been trying to cover up
their acts from public scrutiny. It is the responsibility of the
RBI to take rigid action against those Banks which have been
practicing disreputable business practices.
60
70. From the past we have also come across financial
institutions which have tried to defraud the public. These acts
are neither in the best interests of the Country nor in the
"interests of citizens. To our surprise, the RBI as a Watch Dog"
should have been more dedicated towards disclosing
information to the general public under the Right to
Information Act.
"71. We also understand that the RBI cannot be put in a fix,"
"by making it accountable to every action taken by it. However,"
in the instant case the RBI is accountable and as such it has
to provide information to the information seekers under
"Section 10(1) of the RTI Act, which reads as under:"
"""Section 10(1) Severability --Where a request"
for access to information is rejected on the
ground that it is in relation to information which
"is exempt from disclosure, then,"
"notwithstanding anything contained in this Act,"
access may be provided to that part of the record
which does not contain any information which is
exempt from disclosure under this Act and
which can reasonably be severed from any part
"that contains exempt information."""
72. It was also contended by learned senior counsel for the
RBI that disclosure of information sought for will also go
61
against the economic interest of the nation. The submission
is wholly misconceived.
73. Economic interest of a nation in most common parlance
are the goals which a nation wants to attain to fulfil its
"national objectives. It is the part of our national interest,"
meaning thereby national interest can’t be seen with the
spectacles(glasses) devoid of economic interest.
74. It includes in its ambit a wide range of economic
transactions or economic activities necessary and beneficial to
"attain the goals of a nation, which definitely includes as an"
objective economic empowerment of its citizens. It has been
recognized and understood without any doubt now that one of
the tool to attain this goal is to make information available to
people. Because an informed citizen has the capacity to
reasoned action and also to evaluate the actions of the
"legislature and executives, which is very important in a"
participative democracy and this will serve the nation’s
interest better which as stated above also includes its
62
economic interests. Recognizing the significance of this tool it
has not only been made one of the fundamental rights under
Article 19 of the Constitution but also a Central Act has been
brought into effect on 12th October 2005 as the Right to
"Information Act, 2005."
75. The ideal of ‘Government by the people’ makes it
necessary that people have access to information on matters of
public concern. The free flow of information about affairs of
Government paves way for debate in public policy and fosters
accountability in Government. It creates a condition for ‘open
governance’ which is a foundation of democracy.
76. But neither the Fundamental Rights nor the Right to
Information have been provided in absolute terms. The
fundamental rights guaranteed under Article 19 Clause 1(a)
are restricted under Article 19 clause 2 on the grounds of
"national and societal interest. Similarly Section 8, clause 1 of"
"Right to Information Act, 2005, contains the exemption"
provisions where right to information can be denied to public
"in the name of national security and sovereignty, national"
63
"economic interests, relations with foreign states etc. Thus, not"
all the information that the Government generates will or shall
be given out to the public. It is true that gone are the days of
closed doors policy making and they are not acceptable also
but it is equally true that there are some information which if
"published or released publicly, they might actually cause more"
harm than good to our national interest... if not domestically it
can make the national interests vulnerable internationally and
it is more so possible with the dividing line between national
and international boundaries getting blurred in this age of
rapid advancement of science and technology and global
economy. It has to be understood that rights can be enjoyed
without any inhibition only when they are nurtured within
protective boundaries. Any excessive use of these rights which
may lead to tampering these boundaries will not further the
national interest. And when it comes to national economic
"interest, disclosure of information about currency or exchange"
"rates, interest rates, taxes, the regulation or supervision of"
"banking, insurance and other financial institutions, proposals"
64
for expenditure or borrowing and foreign investment could in
"some cases harm the national economy, particularly if"
"released prematurely. However, lower level economic and"
"financial information, like contracts and departmental budgets"
should not be withheld under this exemption. This makes it
necessary to think when or at what stage an information is to
"be provided i.e., the appropriate time of providing the"
information which will depend on nature of information sought
for and the consequences it will lead to after coming in public
domain.
"77. In one of the case, the respondent S.S. Vohra sought"
certain information in relation to the Patna Branch of ICICI
Bank and advisory issued to the Hong Kong Branch of ICICI
Bank. The contention of the respondent was that the Finance
Minister had made a written statement on the floor of the
"House on 24.07.2009 that some banks like SBI, ICICI, Bank of"
"Baroda, Dena Bank etc., were violating FEMA Guidelines for"
opening of accounts and categorically mentioned that the
Patna Branch of ICICI Bank Ltd. had opened some fictitious
65
accounts which were opened by fraudsters and hence an
advisory note was issued to the concerned branch on
December 2007 for its irregularities. The Finance Minister
even mentioned that in the year 2008 the ICICI Bank Ltd. was
also warned for alleged irregular dealings in securities in Hong
"Kong. Hence, the respondent sought such advisory note as"
issued by the RBI to ICICI Bank. The Central Information
Commissioner in the impugned order considered the RBI
Master Circular dated 01.07.2009 to all the commercial banks
giving various directions and finally held as under :-
"""It has been contended by the Counsel on behalf of"
the ICICI Bank Limited that an advisory note is prepared
"after reliance on documents such as Inspection Reports,"
"Scrutiny reports etc. and hence, will contain the contents of"
those documents too which are otherwise exempt from
disclosure. We have already expressed our view in express
terms that whether or not an Advisory Note shall be
disclosed under the RTI Act will have to be determined on
"case by case basis. In some other case, for example, there"
may be a situation where some contents of the Advisory
Note may have to be severed to such an extent that details
of Inspection Reports etc. can be separated from the Note
and then be provided to the RTI Applicant. Section 10 of
the RTI Act leaves it open to decide each case on its merits
after having satisfied ourselves whether an Advisory Note
needs to be provided as it is or whether some of its contents
may be severed since they may be exempted per se under
"the RTI Act. However, we find no reason, whatsoever, to"
apply Section 10 of the RTI Act in order to severe the
contents of the Advisory Note issued by the RBI to the ICICI
Bank Limited as the matter has already been placed on the
floor of the Lok Sabha by the Hon’ble Finance Minister.
66
This is a matter of concern since it involves the
violation of policy Guidelines initiated by the RBI and
affects the public at large. Transparency cannot be brought
overnight in any system and one can hope to witness
accountability in a system only when its end users are
"well-educated, well-informed and well-aware. If the"
customers of commercial banks will remain oblivious to the
violations of RBI Guidelines and standards which such
"banks regularly commit, then eventually the whole financial"
system of the country would be at a monumental loss. This
can only be prevented by suo motu disclosure of such
information as the penalty orders are already in public
"domain."""
"78. Similarly, in another case the respondent Jayantilal N."
"Mistry sought information from the CPIO, RBI in respect of a"
Cooperative Bank viz. Saraspur Nagrik Sahkari Bank Limited
"related to inspection report, which was denied by the CPIO on"
the ground that the information contained therein were
received by RBI in a fiduciary capacity and are exempt under
Section 8(1)(e) of RTI Act. The CIC directed the petitioner to
furnish that information since the RBI expressed their
willingness to disclose a summary of substantive part of the
inspection report to the respondent. While disposing of the
appeal the CIC observed:-
"""Before parting with this appeal, we would like to"
record our observations that in a rapidly unfolding
"economics scenario, there are public institutions, both"
"in the banking and non-banking sector, whose"
activities have not served public interest. On the
67
"contrary, some such institutions may have attempted"
to defraud the public of their moneys kept with such
institutions in trust. RBI being the Central Bank is
one of the instrumentalities available to the public
which as a regulator can inspect such institutions and
initiate remedial measures where necessary. It is
"important that the general public, particularly, the"
share holders and the depositors of such institutions
are kept aware of RBI’s appraisal of the functioning of
such institutions and taken into confidence about the
remedial actions initiated in specific cases. This will
serve the public interest. The RBI would therefore be
well advised to be proactive in disclosing information
to the public in general and the information seekers
"under the RTI Act, in particular. The provisions of"
Section 10(1) of the RTI Act can therefore be
judiciously used when necessary to adhere to this
"objective."""
"79. In another case, where the respondent P.P. Kapoor"
sought information inter alia about the details of default in
"loans taken from public sector banks by industrialists, out of"
"the list of defaulters, top 100 defaulters, names of the"
"businessmen, firm name, principal amount, interest amount,"
date of default and date of availing the loan etc. The said
information was denied by the CPIO mainly on the basis that
it was held in fiduciary capacity and was exempt from
"disclosure of such information. Allowing the appeal, the CIC"
directed for the disclosure of such information. The CIC in the
impugned order has rightly observed as under:-
68
"""I wish government and its instrumentalities"
would remember that all information held by
"them is owned by citizens, who are sovereign."
"Further, it is often seen that banks and financial"
institutions continue to provide loans to
industrialists despite their default in repayment
"of an earlier loan."" This Court in UP Financial"
"Corporation vs. Gem Cap India Pvt. Ltd., AIR"
1993 SC 1435 has noted that :
"""Promoting industrialization at the cost of"
public funds does not serve the public
"interest, it merely amounts to transferring"
public money to private account’. Such
practices have led citizens to believe that
defaulters can get away and play fraud on
public funds. There is no doubt that
information regarding top industrialists
who have defaulted in repayment of loans
must be brought to citizens’ knowledge;
there is certainly a larger public interest
that could be served on ....disclosure of
"the same. In fact, information about"
industrialists who are loan defaulters of
the country may put pressure on such
persons to pay their dues. This would
have the impact of alerting Citizens about
those who are defaulting in payments and
could also have some impact in shaming
them.
RBI had by its Circular DBOD No.
"BC/CIS/47/20.16.002/94 dated April 23, 1994"
directed all banks to send a report on their
"defaulters, which it would share with all banks"
"and financial institutions, with the following"
objectives:
1) To alert banks and financial institutions (FIs)
and to put them on guard against borrowers
who have defaulted in their dues to lending
institutions;
2) To make public the names of the borrowers
who have defaulted and against whom suits
"have been filed by banks/ FIs."""
69
"80. At this juncture, we may refer the decision of this Court"
"in Mardia Chemicals Limited vs. Union of India, (2004) 4"
"SCC 311, wherein this court while considering the validity of"
SARFAESI Act and recovery of non-performing assets by
"banks and financial institutions in India, held :-"
""".............it may be observed that though the"
transaction may have a character of a private
contract yet the question of great importance behind
such transactions as a whole having far reaching
effect on the economy of the country cannot be
"ignored, purely restricting it to individual"
transactions more particularly when financing is
through banks and financial institutions utilizing the
"money of the people in general namely, the"
depositors in the banks and public money at the
"disposal of the financial institutions. Therefore,"
wherever public interest to such a large extent is
involved and it may become necessary to achieve an
"object which serves the public purposes, individual"
rights may have to give way. Public interest has
always been considered to be above the private
"interest. Interest of an individual may, to some"
"extent, be affected but it cannot have the potential of"
taking over the public interest having an impact in
"the socio- economic drive of the country..........."""
81. In rest of the cases the CIC has considered elaborately
the information sought for and passed orders which in our
"opinion do not suffer from any error of law, irrationality or"
arbitrariness.
70
"82. We have, therefore, given our anxious consideration to"
the matter and came to the conclusion that the Central
Information Commissioner has passed the impugned orders
"giving valid reasons and the said orders, therefore, need no"
interference by this Court.
83. There is no merit in all these cases and hence they are
dismissed.
..................................J.
(M.Y. Eqbal)
..................................J.
(C. Nagappan )
New Delhi
"December 16, 2015"
71
ITEM NO.1A COURT NO.9 SECTION XVIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Transfer Case (Civil) No.91/2015 @ T.P.(C) No.707/2012
RESERVE BANK OF INDIA Petitioner(s)
VERSUS
JAYANTILAL N. MISTRY Respondent(s)
WITH T.C.(C) No.92/2015 @ T.P.(C) No.708/2012
T.C.(C) No. 93/2015 @ T.P.(C) No.711/2012
T.C.(C) No. 94/2015 @ T.P.(C) No.712/2012
T.C.(C) No. 95/2015 @ T.P.(C) No.713/2012
T.C.(C) No. 96/2015 @ T.P.(C) No.715/2012
T.C.(C) No. 97/2015 @ T.P.(C) No.716/2012
T.C.(C) No. 98/2015 @ T.P.(C) No.717/2012
T.C.(C) No. 99/2015 @ T.P.(C) No.718/2012
T.C.(C) No. 100/2015 @ T.P.(C) No.709/2012
T.C.(C) No. 101/2015 @ T.P.(C) No.714/2012
Date : 16/12/2015 These Cases were called on for
pronouncement of Judgment today.
"For Petitioner(s) Mr. T. R. Andhyarujina, Sr. Adv."
"Mr. Kuldeep S. Parihar, Adv."
"Mr. H. S. Parihar,Adv."
"Mr. Soumik Gitosal, Adv."
"Mr. Siddharth Sijoria, Adv."
"Mr. P. Narasimhan,Adv."
"Mr. Bharat Sangal,Adv."
"For Respondent(s) Dr. Lalit Bhasin, Adv."
"Ms. Nina Gupta, Adv."
"Mr. Mudit Sharma,Adv."
72
"Mr. Prashant Bhushan,Adv."
"Mr. H. S. Parihar,Adv."
"Ms. Jyoti Mendiratta,Adv."
"Mr. K.R. Anand, Adv."
"Mr. Vivek Gupta,Adv."
"Ms. Manisha T. Karia,Adv."
"Ms. Srishti Rani, Adv."
"Mr. Rakesh K. Sharma,Adv."
"Mr. Amol B. Karande, Adv."
Hon’ble Mr. Justice M. Y. Eqbal pronounced the
reportable Judgment of the Bench comprising of His Lordship
and Hon’ble Mr. Justice C. Nagappan.
These transferred Cases are dismissed in terms of the
signed reportable judgment.
(Sanjay Kumar-II) (Indu Pokhriyal)
Court Master Court Master
(Signed Order is placed on the file)
73
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. … Appellants
Vs.
Aditya Bandopadhyay & Ors. … Respondents
With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)
J U D G M E N T
"R.V.RAVEENDRAN, J."
"Leave granted. For convenience, we will refer to the facts of the first"
case.
"2. The first respondent appeared for the Secondary School Examination,"
2008 conducted by the Central Board of Secondary Education (for short
2
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed
with his marks. He thought that he had done well in the examination but his
answer-books were not properly valued and that improper valuation had
resulted in low marks. Therefore he made an application for inspection and
re-evaluation of his answer-books. CBSE rejected the said request by letter
dated 12.7.2008. The reasons for rejection were:
(i) The information sought was exempted under Section 8(1)(e) of RTI
Act since CBSE shared fiduciary relationship with its evaluators and
maintain confidentiality of both manner and method of evaluation.
(ii) The Examination Bye-laws of the Board provided that no candidate
shall claim or is entitled to re-evaluation of his answers or disclosure
or inspection of answer book(s) or other documents.
(iii) The larger public interest does not warrant the disclosure of such
information sought.
"(iv) The Central Information Commission, by its order dated 23.4.2007 in"
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such
disclosure.”
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008
before the Calcutta High Court and sought the following reliefs : (a) for a
declaration that the action of CBSE in excluding the provision of re-
"evaluation of answer-sheets, in regard to the examinations held by it was"
"illegal, unreasonable and violative of the provisions of the Constitution of"
3
India; (b) for a direction to CBSE to appoint an independent examiner for re-
evaluating his answer-books and issue a fresh marks card on the basis of re-
evaluation; (c) for a direction to CBSE to produce his answer-books in
regard to the 2008 Secondary School Examination so that they could be
properly reviewed and fresh marks card can be issued with re-evaluation
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and
for a direction to produce the answer-books into court for inspection by the
first respondent. The respondent contended that section 8(1)(e) of Right to
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not"
applicable and relied upon the provisions of the RTI Act to claim inspection.
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-"
evaluation and inspection of answer-books were impermissible and what
was permissible was only verification of marks. They relied upon the CBSE
"Examination Bye-law No.61, relevant portions of which are extracted"
below:
“61. Verification of marks obtained by a Candidate in a subject
(i) A candidate who has appeared at an examination conducted by the
Board may apply to the concerned Regional Officer of the Board for
verification of marks in any particular subject. The verification will be
restricted to checking whether all the answer's have been evaluated and
that there has been no mistake in the totalling of marks for each question
in that subject and that the marks have been transferred correctly on the
title page of the answer book and to the award list and whether the
4
supplementary answer book(s) attached with the answer book mentioned
by the candidate are intact. No revaluation of the answer book or
supplementary answer book(s) shall be done.
(ii) Such an application must be made by the candidate within 21 days
from the date of the declaration of result for Main Examination and 15
days for Compartment Examination.
(iii) All such applications must be accompanied by payment of fee as
prescribed by the Board from time to time.
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her"
answers or disclosure or inspection of the answer book(s) or other
documents.
xxxx
(vi) In no case the verification of marks shall be done in the presence of
"the candidate or anyone else on his/her behalf, nor will the answer books"
be shown to him/her or his/her representative.
(vii) Verification of marks obtained by a candidate will be done by the
officials appointed by or with the approval of the Chairman.
"(viii) The marks, on verification will be revised upward or downward, as"
per the actual marks obtained by the candidate in his/her answer book.
xxxx
62. Maintenance of Answer Books
The answer books shall be maintained for a period of three months and
shall thereafter be disposed of in the manner as decided by the Chairman
from time to time.”
(emphasis supplied)
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated
schools across the country appear in class X and class XII examinations
conducted by it and this generates as many as 60 to 65 lakhs of answer-
"books; that as per Examination Bye-law No.62, it maintains the answer"
5
books only for a period of three months after which they are disposed of. It
was submitted that if candidates were to be permitted to seek re-evaluation
"of answer books or inspection thereof, it will create confusion and chaos,"
subjecting its elaborate system of examinations to delay and disarray. It was
"stated that apart from class X and class XII examinations, CBSE also"
conducts several other examinations (including the All India Pre-Medical
"Test, All India Engineering Entrance Examination and Jawahar Navodaya"
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the
answer-books or grant inspection of answer-books or grant certified copies
"thereof, it would interfere with its effective and efficient functioning, and"
will also require huge additional staff and infrastructure. It was submitted
that the entire examination system and evaluation by CBSE is done in a
scientific and systemic manner designed to ensure and safeguard the high
academic standards and at each level utmost care was taken to achieve the
"object of excellence, keeping in view the interests of the students. CBSE"
referred to the following elaborate procedure for evaluation adopted by it :
“The examination papers are set by the teachers with at least 20 years of
teaching experience and proven integrity. Paper setters are normally
appointed from amongst academicians recommended by then Committee
of courses of the Board. Every paper setter is asked to set more than one
set of question papers which are moderated by a team of moderators who
are appointed from the academicians of the University or from amongst
the Senior Principals. The function of the moderation team is to ensure
correctness and consistency of different sets of question papers with the
curriculum and to assess the difficulty level to cater to the students of
6
different schools in different categories. After assessing the papers from
"every point of view, the team of moderators gives a declaration whether"
"the whole syllabus is covered by a set of question papers, whether the"
distribution of difficulty level of all the sets is parallel and various other
aspects to ensure uniform standard. The Board also issues detailed
instructions for the guidance of the moderators in order to ensure uniform
criteria for assessment.
The evaluation system on the whole is well organized and fool-proof. All
the candidates are examined through question papers set by the same
paper setters. Their answer books are marked with fictitious roll numbers
so as to conceal their identity. The work of allotment of fictitious roll
number is carried out by a team working under a Chief Secrecy Officer
having full autonomy. The Chief Secrecy Officer and his team of
assistants are academicians drawn from the Universities and other
autonomous educational bodies not connected with the Board. The Chief
Secrecy Officer himself is usually a person of the rank of a University
professor. No official of the Board at the Central or Regional level is
associated with him in performance of the task assigned to him. The codes
of fictitious roll numbers and their sequences are generated by the Chief
Secrecy Officer himself on the basis of mathematical formula which
randomize the real roll numbers and are known only to him and his team.
This ensures complete secrecy about the identification of the answer book
"so much so, that even the Chairman, of the Board and the Controller of"
Examination of the Board do not have any information regarding the
fictitious roll numbers granted by the Chief Secrecy Officer and their real
counterpart numbers.
"At the evaluation stage, the Board ensures complete fairness and"
uniformity by providing a marking scheme which is uniformity applicable
to all the examiners in order to eliminate the chances of subjectivity.
These marking schemes are jointly prepared at the Headquarters of the
Board in Delhi by the Subject Experts of all the regions. The main purpose
of the marking scheme is to maintain uniformity in the evaluation of the
answer books.
The evaluation of the answer books in all major subjects including
"mathematics, science subjects is done in centralized “on the spot”"
evaluation centers where the examiners get answer book in interrupted
"serial orders. Also, the answer books are jumbled together as a result of"
"which the examiners, say in Bangalore may be marking the answer book"
"of a candidate who had his examination in Pondicherry, Goa, Andaman"
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka"
itself but he has no way of knowing exactly which answer book he is
examining. The answer books having been marked with fictitious roll
numbers give no clue to any examiner about the state or territory it
7
belongs to. It cannot give any clue about the candidate’s school or centre
of examination. The examiner cannot have any inclination to do any
favour to a candidate because he is unable to decodify his roll number or
"to know as to which school, place or state or territory he belongs to."
The examiners check all the questions in the papers thoroughly under the
supervision of head examiner and award marks to the sub parts
individually not collectively. They take full precautions and due attention
is given while assessing an answer book to do justice to the candidate. Re-
evaluation is administratively impossible to be allowed in a Board where
lakhs of students take examination in multiple subjects.
There are strict instructions to the additional head examiners not to allow
any shoddy work in evaluation and not to issue more than 20-25 answer
books for evaluation to an examiner on a single day. The examiners are
practicing teachers who guard the interest of the candidates. There is no
ground to believe that they do unjust marking and deny the candidates
their due. It is true that in some cases totaling errors have been detected at
the stage of scrutiny or verification of marks. In order to minimize such
"errors and to further strengthen and to improve its system, from 1993"
checking of totals and other aspects of the answers has been trebled in
order to detect and eliminate all lurking errors.
The results of all the candidates are reviewed by the Results Committee
functioning at the Head Quarters. The Regional Officers are not the
number of this Committee. This Committee reviews the results of all the
regions and in case it decides to standardize the results in view of the
"results shown by the regions over the previous years, it adopts a uniform"
policy for the candidates of all the regions. No special policy is adopted
"for any region, unless there are some special reasons. This practice of"
awarding standardized marks in order to moderate the overall results is a
practice common to most of the Boards of Secondary Education. The
exact number of marks awarded for the purpose of standardization in
different subjects varies from year to year. The system is extremely
impersonalized and has no room for collusion infringement. It is in a word
a scientific system.”
CBSE submitted that the procedure evolved and adopted by it ensures
fairness and accuracy in evaluation of answer-books and made the entire
process as foolproof as possible and therefore denial of re-evaluation or
8
inspection or grant of copies cannot be considered to be denial of fair play or
unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed of the said
writ petition along with the connected writ petitions (relied by West Bengal
Board of Secondary Education and others) by a common judgment dated
5.2.2009. The High Court held that the evaluated answer-books of an
examinee writing a public examination conducted by statutory bodies like
"CBSE or any University or Board of Secondary Education, being a"
"‘document, manuscript record, and opinion’ fell within the definition of"
“information” as defined in section 2(f) of the RTI Act. It held that the
provisions of the RTI Act should be interpreted in a manner which would
lead towards dissemination of information rather than withholding the same;
"and in view of the right to information, the examining bodies were bound to"
provide inspection of evaluated answer books to the examinees.
Consequently it directed CBSE to grant inspection of the answer books to
the examinees who sought information. The High Court however rejected
"the prayer made by the examinees for re-evaluation of the answer-books, as"
that was not a relief that was available under RTI Act. RTI Act only
"provided a right to access information, but not for any consequential reliefs."
9
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this"
appeal by special leave.
6. Before us the CBSE contended that the High Court erred in (i)
"directing CBSE to permit inspection of the evaluated answer books, as that"
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),"
which provided that no candidate shall claim or be entitled to re-evaluation
of answer books or disclosure/inspection of answer books; (ii) holding that
"Bye-law 61(4) was not binding upon the examinees, in view of the"
"overriding effect of the provisions of the RTI Act, even though the validity"
of that bye-law had not been challenged; (iii) not following the decisions of
this court in Maharashtra State Board of Secondary Education vs. Paritosh
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar"
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan"
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC"
"603] and Secretary, West Bengal Council of Higher Secondary Education"
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a
right to inspect his answer book under section 3 of the RTI Act and the
examining bodies like CBSE were not exempted from disclosure of
information under section 8(1)(e) of the RTI Act. The appellants contended
"that they were holding the “information” (in this case, the evaluated answer"
10
books) in a fiduciary relationship and therefore exempted under section
8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission contended
that the object of the RTI Act is to ensure maximum disclosure of
information and minimum exemptions from disclosure; that an examining
"body does not hold the evaluated answer books, in any fiduciary relationship"
either with the student or the examiner; and that the information sought by
"any examinee by way of inspection of his answer books, will not fall under"
any of the exempted categories of information enumerated in section 8 of the
RTI Act. It was submitted that an examining body being a public authority
"holding the ‘information’, that is, the evaluated answer-books, and the"
inspection of answer-books sought by the examinee being exercise of ‘right
"to information’ as defined under the Act, the examinee as a citizen has the"
right to inspect the answer-books and take certified copies thereof. It was
"also submitted that having regard to section 22 of the RTI Act, the"
provisions of the said Act will have effect notwithstanding anything
"inconsistent in any law and will prevail over any rule, regulation or bye law"
of the examining body barring or prohibiting inspection of answer books.
11
"8. On the contentions urged, the following questions arise for our"
consideration :
(i) Whether an examinee’s right to information under the RTI Act
includes a right to inspect his evaluated answer books in a public
examination or taking certified copies thereof?
(ii) Whether the decisions of this court in Maharashtra State Board of
Secondary Education [1984 (4) SCC 27] and other cases referred to
"above, in any way affect or interfere with the right of an examinee"
seeking inspection of his answer books or seeking certified copies
thereof?
(iii) Whether an examining body holds the evaluated answer books “in a
fiduciary relationship” and consequently has no obligation to give
inspection of the evaluated answer books under section 8 (1)(e) of
RTI Act?
(iv) If the examinee is entitled to inspection of the evaluated answer books
"or seek certified copies thereof, whether such right is subject to any"
"limitations, conditions or safeguards?"
Relevant Legal Provisions
"9. To consider these questions, it is necessary to refer to the statement of"
"objects and reasons, the preamble and the relevant provisions of the RTI"
12
"Act. RTI Act was enacted in order to ensure smoother, greater and more"
effective access to information and provide an effective framework for
effectuating the right of information recognized under article 19 of the
Constitution. The preamble to the Act declares the object sought to be
achieved by the RTI Act thus:
“An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control
"of public authorities, in order to promote transparency and accountability"
"in the working of every public authority, the constitution of a Central"
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to contain
corruption and to hold Governments and their instrumentalities
accountable to the governed;
And whereas revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
"Governments, optimum use of limited fiscal resources and the"
preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while
preserving the paramountcy of the democratic ideal.”
Chapter II of the Act containing sections 3 to 11 deals with right to
information and obligations of public authorities. Section 3 provides for
"right to information and reads thus: “Subject to the provisions of this Act,"
all citizens shall have the right to information.” This section makes it clear
13
"that the RTI Act gives a right to a citizen to only access information, but not"
seek any consequential relief based on such information. Section 4 deals
with obligations of public authorities to maintain the records in the manner
provided and publish and disseminate the information in the manner
provided. Section 6 deals with requests for obtaining information. It
provides that applicant making a request for information shall not be
required to give any reason for requesting the information or any personal
details except those that may be necessary for contacting him. Section 8
deals with exemption from disclosure of information and is extracted in its
entirety:
“8. Exemption from disclosure of information -- (1) Notwithstanding
"anything contained in this Act, there shall be no obligation to give any"
"citizen,-"
"(a) information, disclosure of which would"
"prejudicially affect the sovereignty and integrity of India, the security,"
"strategic, scientific or economic interests of the State, relation with foreign"
State or lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the disclosure of which
may constitute contempt of court;
"(c) information, the disclosure of which would cause a"
breach of privilege of Parliament or the State Legislature;
"(d) information including commercial confidence, trade"
"secrets or intellectual property, the disclosure of which would harm the"
"competitive position of a third party, unless the competent authority is"
satisfied that larger public interest warrants the disclosure of such
information;
14
(e) information available to a person in his fiduciary
"relationship, unless the competent authority is satisfied that the larger"
public interest warrants the disclosure of such information;
(f) information received in confidence from foreign
Government;
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or identify the source of
information or assistance given in confidence for law enforcement or
security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
"the Council of Ministers, Secretaries and other officers:"
"Provided that the decisions of Council of Ministers, the reasons thereof,"
and the material on the basis of which the decisions were taken shall be
"made public after the decision has been taken, and the matter is complete,"
or over:
Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has no relationship to any public activity or
"interest, or which would cause unwarranted invasion of the privacy of the"
individual unless the Central Public Information Officer or the State
"Public Information Officer or the appellate authority, as the case may be,"
is satisfied that the larger public interest justifies the disclosure of such
information:
Provided that the information which cannot be denied to the Parliament or
a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in"
"accordance with sub-section (1), a public authority may allow access to"
"information, if public interest in disclosure outweighs the harm to the"
protected interests.
"(3) Subject to the provisions of clauses (a), (c) and (i)"
"of sub-section (1), any information relating to any occurrence, event or"
"matter which has taken place, occurred or happened twenty years before"
15
the date on which any request is made under secton 6 shall be provided to
any person making a request under that section:
Provided that where any question arises as to the date from which the said
"period of twenty years has to be computed, the decision of the Central"
"Government shall be final, subject to the usual appeals provided for in this"
Act.”
(emphasis supplied)
"Section 9 provides that without prejudice to the provisions of section 8, a"
request for information may be rejected if such a request for providing
access would involve an infringement of copyright. Section 10 deals with
severability of exempted information and sub-section (1) thereof is extracted
below:
“(1) Where a request for access to information is rejected on the ground
"that it is in relation to information which is exempt from disclosure, then,"
"notwithstanding anything contained in this Act, access may be provided to"
that part of the record which does not contain any information which is
exempt from disclosure under this Act and which can reasonably be
severed from any part that contains exempt information.”
Section 11 deals with third party information and sub-section (1) thereof is
extracted below:
“(1) Where a Central Public Information Officer or a State Public
"Information Officer, as the case may be, intends to disclose any"
"information or record, or part thereof on a request made under this Act,"
which relates to or has been supplied by a third party and has been treated
"as confidential by that third party, the Central Public Information Officer"
"or State Public Information Officer, as the case may be, shall, within five"
"days from the receipt of the request, give a written notice to such third"
party of the request and of the fact that the Central Public Information
"Officer or State Public Information Officer, as the case may be, intends to"
16
"disclose the information or record, or part thereof, and invite the third"
"party to make a submission in writing or orally, regarding whether the"
"information should be disclosed, and such submission of the third party"
shall be kept in view while taking a decision about disclosure of
information:
Provided that except in the case of trade or commercial secrets protected
"by law, disclosure may be allowed if the public interest in disclosure"
outweighs in importance any possible harm or injury to the interests of
such third party.”
"The definitions of information, public authority, record and right to"
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are"
extracted below:
"“(f) ""information"" means any material in any form, including records,"
"documents, memos, e-mails, opinions, advices, press releases, circulars,"
"orders, logbooks, contracts, reports, papers, samples, models, data material"
held in any electronic form and information relating to any private body
which can be accessed by a public authority under any other law for the
time being in force;
"(h) ""public authority"" means any authority or body or institution of self-"
government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
"(d) by notification issued or order made by the appropriate Government,"
and includes any-
"(i) body owned, controlled or substantially financed;"
"(ii) non-Government organisation substantially financed,"
directly or indirectly by funds provided by the appropriate Government;
17
"(i) ""record"" includes-"
"(a) any document, manuscript and file;"
"(b) any microfilm, microfiche and facsimile copy of a document;"
(c) any reproduction of image or images embodied in such microfilm
(whether enlarged or not); and
(d) any other material produced by a computer or any other device;
"(j) ""right to information"" means the right to information accessible under"
this Act which is held by or under the control of any public authority and
includes the right to-
"(i) inspection of work, documents, records;"
"(ii) taking notes, extracts or certified copies of documents or records;"
(iii) taking certified samples of material;
"(iv) obtaining information in the form of diskettes, floppies, tapes,"
video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other
device;
Section 22 provides for the Act to have overriding effect and is extracted
below:
“The provisions of this Act shall have effect notwithstanding anything
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of"
"1923), and any other law for the time being in force or in any instrument"
having effect by virtue of any law other than this Act.”
10. It will also be useful to refer to a few decisions of this Court which
considered the importance and scope of the right to information. In State of
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:"
18
"“In a government of responsibility like ours, where all the agents of the"
"public must be responsible for their conduct, there can but few secrets."
"The people of this country have a right to know every public act,"
"everything, that is done in a public way, by their public functionaries."
They are entitled to know the particulars of every public transaction in all
"its bearing. The right to know, which is derived from the concept of"
"freedom of speech, though not absolute, is a factor which should make one"
"wary, when secrecy is claimed for transactions which can, at any rate,"
have no repercussion on public security.”
(emphasis supplied)
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:"
"“In modern constitutional democracies, it is axiomatic that citizens have a"
"right to know about the affairs of the Government which, having been"
"elected by them, seeks to formulate sound policies of governance aimed at"
"their welfare. However, like all other rights, even this right has recognised"
"limitations; it is, by no means, absolute. ………………Implicit in this"
assertion is the proposition that in transaction which have serious
"repercussions on public security, secrecy can legitimately be claimed"
because it would then be in the public interest that such matters are not
publicly disclosed or disseminated.
To ensure the continued participation of the people in the democratic
"process, they must be kept informed of the vital decisions taken by the"
"Government and the basis thereof. Democracy, therefore, expects"
openness and openness is a concomitant of a free society. Sunlight is the
best disinfectant. But it is equally important to be alive to the dangers that
lie ahead. It is important to realise that undue popular pressure brought to
bear on decision-makers is Government can have frightening side-effects.
If every action taken by the political or executive functionary is
transformed into a public controversy and made subject to an enquiry to
"soothe popular sentiments, it will undoubtedly have a chilling effect on the"
independence of the decision-maker who may find it safer not to take any
decision. It will paralyse the entire system and bring it to a grinding halt.
So we have two conflicting situations almost enigmatic and we think the
answer is to maintain a fine balance which would serve public interest.”
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,"
this Court held that right of information is a facet of the freedom of “speech
19
and expression” as contained in Article 19(1)(a) of the Constitution of India
and such a right is subject to any reasonable restriction in the interest of the
security of the state and subject to exemptions and exceptions.
Re : Question (i)
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to
"any material in any form which includes records, documents, opinions,"
papers among several other enumerated items. The term ‘record’ is defined
"in section 2(i) of the said Act as including any document, manuscript or file"
among others. When a candidate participates in an examination and writes
his answers in an answer-book and submits it to the examining body for
"evaluation and declaration of the result, the answer-book is a document or"
record. When the answer-book is evaluated by an examiner appointed by the
"examining body, the evaluated answer-book becomes a record containing"
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also
an ‘information’ under the RTI Act.
12. Section 3 of RTI Act provides that subject to the provisions of this
Act all citizens shall have the right to information. The term ‘right to
information’ is defined in section 2(j) as the right to information accessible
20
under the Act which is held by or under the control of any public authority.
"Having regard to section 3, the citizens have the right to access to all"
information held by or under the control of any public authority except those
excluded or exempted under the Act. The object of the Act is to empower
the citizens to fight against corruption and hold the Government and their
"instrumentalities accountable to the citizens, by providing them access to"
information regarding functioning of every public authority. Certain
safeguards have been built into the Act so that the revelation of information
will not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidential and sensitive information. The RTI Act provides
access to information held by or under the control of public authorities and
not in regard to information held by any private person. The Act provides
the following exclusions by way of exemptions and exceptions (under
"sections 8, 9 and 24) in regard to information held by public authorities:"
(i) Exclusion of the Act in entirety under section 24 to intelligence and
security organizations specified in the Second Schedule even though
"they may be “public authorities”, (except in regard to information"
with reference to allegations of corruption and human rights
violations).
21
(ii) Exemption of the several categories of information enumerated in
section 8(1) of the Act which no public authority is under an
"obligation to give to any citizen, notwithstanding anything contained"
"in the Act [however, in regard to the information exempted under"
"clauses (d) and (e), the competent authority, and in regard to the"
"information excluded under clause (j), Central Public Information"
"Officer/State Public Information Officer/the Appellate Authority, may"
"direct disclosure of information, if larger public interest warrants or"
justifies the disclosure].
(iii) If any request for providing access to information involves an
"infringement of a copyright subsisting in a person other than the State,"
the Central/State Public Information Officer may reject the request
under section 9 of RTI Act.
"Having regard to the scheme of the RTI Act, the right of the citizens to"
"access any information held or under the control of any public authority,"
should be read in harmony with the exclusions/exemptions in the Act.
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)"
are neither security nor intelligence organisations and therefore the
exemption under section 24 will not apply to them. The disclosure of
information with reference to answer-books does not also involve
infringement of any copyright and therefore section 9 will not apply.
22
"Resultantly, unless the examining bodies are able to demonstrate that the"
evaluated answer-books fall under any of the categories of exempted
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,"
they will be bound to provide access to the information and any applicant
"can either inspect the document/record, take notes, extracts or obtain"
certified copies thereof.
14. The examining bodies contend that the evaluated answer-books are
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are"
‘information’ held in its fiduciary relationship. They fairly conceded that
evaluated answer-books will not fall under any other exemptions in sub-
section (1) of section 8. Every examinee will have the right to access his
"evaluated answer-books, by either inspecting them or take certified copies"
"thereof, unless the evaluated answer-books are found to be exempted under"
section 8(1)(e) of the RTI Act.
Re : Question (ii)
"15. In Maharashtra State Board, this Court was considering whether"
denial of re-evaluation of answer-books or denial of disclosure by way of
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of"
23
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was"
violative of principles of natural justice and violative of Articles 14 and 19
of the Constitution of India. Rule 104(1) provided that no re-evaluation of
the answer books shall be done and on an application of any candidate
verification will be restricted to checking whether all the answers have been
examined and that there is no mistake in the totalling of marks for each
question in that subject and transferring marks correctly on the first cover
page of the answer book. Rule 104(3) provided that no candidate shall claim
or be entitled to re-evaluation of his answer-books or inspection of answer-
books as they were treated as confidential. This Court while upholding the
validity of Rule 104(3) held as under :
“…. the “process of evaluation of answer papers or of subsequent
verification of marks” under Clause (3) of Regulation 104 does not attract
the principles of natural justice since no decision making process which
brings about adverse civil consequences to the examinees in involved. The
principles of natural justice cannot be extended beyond reasonable and
rational limits and cannot be carried to such absurd lengths as to make it
necessary that candidates who have taken a public examination should be
allowed to participate in the process of evaluation of their performances or
to verify the correctness of the evaluation made by the examiners by
themselves conducting an inspection of the answer-books and determining
whether there has been a proper and fair valuation of the answers by the
"examiners."""
So long as the body entrusted with the task of framing the rules or
"regulations acts within the scope of the authority conferred on it, in the"
sense that the rules or regulations made by it have a rational nexus with
"the object and purpose of the statute, the court should not concern itself"
with the wisdom or efficaciousness of such rules or regulations…. The
Legislature and its delegate are the sole repositories of the power to decide
what policy should be pursued in relation to matters covered by the Act …
24
and there is no scope for interference by the Court unless the particular
provision impugned before it can be said to suffer from any legal
"infirmity, in the sense of its being wholly beyond the scope of the"
regulation making power or its being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations
imposed by the Constitution.
"It was perfectly within the competence of the Board, rather it was its plain"
"duty, to apply its mind and decide as a matter of policy relating to the"
conduct of the examination as to whether disclosure and inspection of the
"answer books should be allowed to the candidates, whether and to what"
extent verification of the result should be permitted after the results have
already been announced and whether any right to claim revaluation of the
answer books should be recognised or provided for. All these are
undoubtedly matters which have an intimate nexus with the objects and
"purposes of the enactment and are, therefore, with in the ambit of the"
general power to make regulations….”
This Court held that Regulation 104(3) cannot be held to be unreasonable
"merely because in certain stray instances, errors or irregularities had gone"
unnoticed even after verification of the concerned answer books according
to the existing procedure and it was only after further scrutiny made either
on orders of the court or in the wake of contentions raised in the petitions
"filed before a court, that such errors or irregularities were ultimately"
discovered. This court reiterated the view that “the test of reasonableness is
not applied in vacuum but in the context of life’s realities” and concluded
"that realistically and practically, providing all the candidates inspection of"
their answer books or re-evaluation of the answer books in the presence of
the candidates would not be feasible. Dealing with the contention that every
25
student is entitled to fair play in examination and receive marks matching his
"performance, this court held :"
“What constitutes fair play depends upon the facts and circumstances
relating to each particular given situation. If it is found that every possible
precaution has been taken and all necessary safeguards provided to ensure
that the answer books inclusive of supplements are kept in safe custody so
as to eliminate the danger of their being tampered with and that the
evaluation is done by the examiners applying uniform standards with
checks and crosschecks at different stages and that measures for detection
"of malpractice, etc. have also been effectively adopted, in such cases it"
"will not be correct on the part of the Courts to strike down, the provision"
prohibiting revaluation on the ground that it violates the rules of fair play.
It appears that the procedure evolved by the Board for ensuring fairness
and accuracy in evaluation of the answer books has made the system as
fool proof as can be possible and is entirely satisfactory. The Board is a
very responsible body. The candidates have taken the examination with
full awareness of the provisions contained in the Regulations and in the
declaration made in the form of application for admission to the
examination they have solemnly stated that they fully agree to abide by the
"regulations issued by the Board. In the circumstances, when we find that"
"all safeguards against errors and malpractices have been provided for,"
there cannot be said to be any denial of fair play to the examinees by
reason of the prohibition against asking for revaluation…. “
This Court concluded that if inspection and verification in the presence of
"the candidates, or revaluation, have to be allowed as of right, it may lead to"
"gross and indefinite uncertainty, particularly in regard to the relative ranking"
"etc. of the candidate, besides leading to utter confusion on account of the"
enormity of the labour and time involved in the process. This court
concluded :
26
“… the Court should be extremely reluctant to substitute its own views as
"to what is wise, prudent and proper in relation to academic matters in"
preference to those formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working of educational
institutions and the departments controlling them. It will be wholly wrong
for the court to make a pedantic and purely idealistic approach to the
"problems of this nature, isolated from the actual realities and grass root"
problems involved in the working of the system and unmindful of the
consequences which would emanate if a purely idealistic view as opposed
to a pragmatic one were to be propounded.”
16. The above principles laid down in Maharashtra State Board have
"been followed and reiterated in several decisions of this Court, some of"
which are referred to in para (6) above. But the principles laid down in
decisions such as Maharashtra State Board depend upon the provisions of
the rules and regulations of the examining body. If the rules and regulations
"of the examining body provide for re-evaluation, inspection or disclosure of"
"the answer-books, then none of the principles in Maharashtra State Board or"
"other decisions following it, will apply or be relevant. There has been a"
gradual change in trend with several examining bodies permitting inspection
and disclosure of the answer-books.
17. It is thus now well settled that a provision barring inspection or
disclosure of the answer-books or re-evaluation of the answer-books and
restricting the remedy of the candidates only to re-totalling is valid and
"binding on the examinee. In the case of CBSE, the provisions barring re-"
27
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104"
considered in Maharashtra State Board. As a consequence if an examination
is governed only by the rules and regulations of the examining body which
"bar inspection, disclosure or re-evaluation, the examinee will be entitled"
only for re-totalling by checking whether all the answers have been
evaluated and further checking whether there is no mistake in totaling of
marks for each question and marks have been transferred correctly to the
"title (abstract) page. The position may however be different, if there is a"
"superior statutory right entitling the examinee, as a citizen to seek access to"
"the answer books, as information."
"18. In these cases, the High Court has rightly denied the prayer for re-"
evaluation of answer-books sought by the candidates in view of the bar
contained in the rules and regulations of the examining bodies. It is also not
a relief available under the RTI Act. Therefore the question whether re-
"evaluation should be permitted or not, does not arise for our consideration."
What arises for consideration is the question whether the examinee is
entitled to inspect his evaluated answer-books or take certified copies
"thereof. This right is claimed by the students, not with reference to the rules"
"or bye-laws of examining bodies, but under the RTI Act which enables them"
28
and entitles them to have access to the answer-books as ‘information’ and
inspect them and take certified copies thereof. Section 22 of RTI Act
"provides that the provisions of the said Act will have effect, notwithstanding"
anything inconsistent therewith contained in any other law for the time being
in force. Therefore the provisions of the RTI Act will prevail over the
provisions of the bye-laws/rules of the examining bodies in regard to
"examinations. As a result, unless the examining body is able to demonstrate"
that the answer-books fall under the exempted category of information
"described in clause (e) of section 8(1) of RTI Act, the examining body will"
be bound to provide access to an examinee to inspect and take copies of his
"evaluated answer-books, even if such inspection or taking copies is barred"
under the rules/bye-laws of the examining body governing the examinations.
"Therefore, the decision of this Court in Maharashtra State Board (supra)"
"and the subsequent decisions following the same, will not affect or interfere"
with the right of the examinee seeking inspection of answer-books or taking
certified copies thereof.
Re : Question (iii)
19. Section 8(1) enumerates the categories of information which are
exempted from disclosure under the provisions of the RTI Act. The
29
examining bodies rely upon clause (e) of section 8(1) which provides that
"there shall be no obligation on any public authority to give any citizen,"
information available to it in its fiduciary relationship. This exemption is
subject to the condition that if the competent authority (as defined in section
2(e) of RTI Act) is satisfied that the larger public interest warrants the
"disclosure of such information, the information will have to be disclosed."
Therefore the question is whether the examining body holds the evaluated
answer-books in its fiduciary relationship.
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different
"capacities and relationship, involving a common duty or obligation."
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary"
relationship’ thus:
“A relationship in which one person is under a duty to act for the benefit
of the other on matters within the scope of the relationship. Fiduciary
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,"
and attorney-client – require the highest duty of care. Fiduciary
relationships usually arise in one of four situations : (1) when one person
"places trust in the faithful integrity of another, who as a result gains"
"superiority or influence over the first, (2) when one person assumes"
"control and responsibility over another, (3) when one person has a duty to"
act for or give advice to another on matters falling within the scope of the
"relationship, or (4) when there is a specific relationship that has"
"traditionally been recognized as involving fiduciary duties, as with a"
lawyer and a client or a stockbroker and a customer.”
30
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as
one whose intention is to act for the benefit of another as to matters relevant
to the relation between them. The Corpus Juris Secundum (Vol. 36A page
381) attempts to define fiduciary thus :
“A general definition of the word which is sufficiently comprehensive to
"embrace all cases cannot well be given. The term is derived from the civil,"
"or Roman, law. It connotes the idea of trust or confidence, contemplates"
"good faith, rather than legal obligation, as the basis of the transaction,"
"refers to the integrity, the fidelity, of the party trusted, rather than his"
"credit or ability, and has been held to apply to all persons who occupy a"
"position of peculiar confidence toward others, and to include those"
informal relations which exist whenever one party trusts and relies on
"another, as well as technical fiduciary relations."
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for"
"another, a trustee, a person holding the character of a trustee, or a"
"character analogous to that of a trustee, with respect to the trust and"
confidence involved in it and the scrupulous good faith and candor which
"it requires; a person having the duty, created by his undertaking, to act"
primarily for another’s benefit in matters connected with such
"undertaking. Also more specifically, in a statute, a guardian, trustee,"
"executor, administrator, receiver, conservator, or any person acting in any"
"fiduciary capacity for any person, trust, or estate. Some examples of what,"
"in particular connections, the term has been held to include and not to"
include are set out in the note.”
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines"
‘fiducial relation’ thus :
“There is a technical distinction between a ‘fiducial relation’ which is
"more correctly applicable to legal relationships between parties, such as"
"guardian and ward, administrator and heirs, and other similar"
"relationships, and ‘confidential relation’ which includes the legal"
"relationships, and also every other relationship wherein confidence is"
rightly reposed and is exercised.
"Generally, the term ‘fiduciary’ applies to any person who occupies a"
position of peculiar confidence towards another. It refers to integrity and
31
"fidelity. It contemplates fair dealing and good faith, rather than legal"
"obligation, as the basis of the transaction. The term includes those"
informal relations which exist whenever one party trusts and relies upon
"another, as well as technical fiduciary relations.”"
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term
fiduciary was defined thus :
“A fiduciary is someone who has undertaken to act for and on behalf of
another in a particular matter in circumstances which give rise to a
relationship of trust and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;
he must not make a profit out of his trust; he must not place himself in a
position where his duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without the informed
consent of his principal.”
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the"
California Court of Appeals defined fiduciary relationship as under :
“any relationship existing between the parties to the transaction where one
of the parties is duty bound to act with utmost good faith for the benefit of
the other party. Such a relationship ordinarily arises where confidence is
"reposed by one person in the integrity of another, and in such a relation the"
"party in whom the confidence is reposed, if he voluntarily accepts or"
"assumes to accept the confidence, can take no advantage from his acts"
relating to the interests of the other party without the latter’s knowledge
and consent.”
21. The term ‘fiduciary’ refers to a person having a duty to act for the
"benefit of another, showing good faith and condour, where such other person"
reposes trust and special confidence in the person owing or discharging the
duty. The term ‘fiduciary relationship’ is used to describe a situation or
32
transaction where one person (beneficiary) places complete confidence in
"another person (fiduciary) in regard to his affairs, business or transaction/s."
The term also refers to a person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in confidence and for the
"benefit and advantage of the beneficiary, and use good faith and fairness in"
dealing with the beneficiary or the things belonging to the beneficiary. If the
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust"
"or to execute certain acts in regard to or with reference to the entrusted thing,"
the fiduciary has to act in confidence and expected not to disclose the thing
or information to any third party. There are also certain relationships where
both the parties have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-à-vis another partner and
an employer vis-à-vis employee. An employee who comes into possession
of business or trade secrets or confidential information relating to the
"employer in the course of his employment, is expected to act as a fiduciary"
"and cannot disclose it to others. Similarly, if on the request of the employer"
"or official superior or the head of a department, an employee furnishes his"
"personal details and information, to be retained in confidence, the employer,"
the official superior or departmental head is expected to hold such personal
"information in confidence as a fiduciary, to be made use of or disclosed only"
33
if the employee’s conduct or acts are found to be prejudicial to the employer.
"22. In a philosophical and very wide sense, examining bodies can be said"
"to act in a fiduciary capacity, with reference to students who participate in an"
"examination, as a government does while governing its citizens or as the"
present generation does with reference to the future generation while
preserving the environment. But the words ‘information available to a
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in
"its normal and well recognized sense, that is to refer to persons who act in a"
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries"
who are to be expected to be protected or benefited by the actions of the
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian"
"with reference to a minor/physically/infirm/mentally challenged, a parent"
"with reference to a child, a lawyer or a chartered accountant with reference"
"to a client, a doctor or nurse with reference to a patient, an agent with"
"reference to a principal, a partner with reference to another partner, a"
"director of a company with reference to a share-holder, an executor with"
"reference to a legatee, a receiver with reference to the parties to a lis, an"
employer with reference to the confidential information relating to the
"employee, and an employee with reference to business dealings/transaction"
of the employer. We do not find that kind of fiduciary relationship between
34
"the examining body and the examinee, with reference to the evaluated"
"answer-books, that come into the custody of the examining body."
23. The duty of examining bodies is to subject the candidates who have
completed a course of study or a period of training in accordance with its
"curricula, to a process of verification/examination/testing of their"
"knowledge, ability or skill, or to ascertain whether they can be said to have"
successfully completed or passed the course of study or training. Other
specialized Examining Bodies may simply subject candidates to a process of
"verification by an examination, to find out whether such person is suitable"
"for a particular post, job or assignment. An examining body, if it is a public"
"authority entrusted with public functions, is required to act fairly,"
"reasonably, uniformly and consistently for public good and in public"
interest. This Court has explained the role of an examining body in regard to
the process of holding examination in the context of examining whether it
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs."
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:"
"“The process of holding examinations, evaluating answer scripts,"
declaring results and issuing certificates are different stages of a single
statutory non-commercial function. It is not possible to divide this
function as partly statutory and partly administrative. When the
Examination Board conducts an examination in discharge of its statutory
"function, it does not offer its ""services"" to any candidate. Nor does a"
35
"student who participates in the examination conducted by the Board, hires"
or avails of any service from the Board for a consideration. On the other
"hand, a candidate who participates in the examination conducted by the"
"Board, is a person who has undergone a course of study and who requests"
the Board to test him as to whether he has imbibed sufficient knowledge to
be fit to be declared as having successfully completed the said course of
"education; and if so, determine his position or rank or competence vis-a-"
vis other examinees. The process is not therefore availment of a service by
"a student, but participation in a general examination conducted by the"
Board to ascertain whether he is eligible and fit to be considered as having
successfully completed the secondary education course. The examination
fee paid by the student is not the consideration for availment of any
"service, but the charge paid for the privilege of participation in the"
examination.……… The fact that in the course of conduct of the
"examination, or evaluation of answer-scripts, or furnishing of mark-books"
"or certificates, there may be some negligence, omission or deficiency,"
"does not convert the Board into a service-provider for a consideration, nor"
convert the examinee into a consumer ………”
It cannot therefore be said that the examining body is in a fiduciary
relationship either with reference to the examinee who participates in the
examination and whose answer-books are evaluated by the examining body.
24. We may next consider whether an examining body would be entitled
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that"
it is in a fiduciary relationship with the examinee. That section provides that
"notwithstanding anything contained in the Act, there shall be no obligation"
to give any citizen information available to a person in his fiduciary
"relationship. This would only mean that even if the relationship is fiduciary,"
the exemption would operate in regard to giving access to the information
36
"held in fiduciary relationship, to third parties. There is no question of the"
"fiduciary withholding information relating to the beneficiary, from the"
beneficiary himself. One of the duties of the fiduciary is to make thorough
disclosure of all relevant facts of all transactions between them to the
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if"
"it is in a fiduciary relationship with an examinee, will be liable to make a full"
disclosure of the evaluated answer-books to the examinee and at the same
"time, owe a duty to the examinee not to disclose the answer-books to anyone"
"else. If A entrusts a document or an article to B to be processed, on"
"completion of processing, B is not expected to give the document or article"
to anyone else but is bound to give the same to A who entrusted the
"document or article to B for processing. Therefore, if a relationship of"
fiduciary and beneficiary is assumed between the examining body and the
"examinee with reference to the answer-book, section 8(1)(e) would operate"
as an exemption to prevent access to any third party and will not operate as a
"bar for the very person who wrote the answer-book, seeking inspection or"
disclosure of it.
25. An evaluated answer book of an examinee is a combination of two
different ‘informations’. The first is the answers written by the examinee and
37
second is the marks/assessment by the examiner. When an examinee seeks
inspection of his evaluated answer-books or seeks a certified copy of the
"evaluated answer-book, the information sought by him is not really the"
"answers he has written in the answer-books (which he already knows), nor"
the total marks assigned for the answers (which has been declared). What he
"really seeks is the information relating to the break-up of marks, that is, the"
specific marks assigned to each of his answers. When an examinee seeks
"‘information’ by inspection/certified copies of his answer-books, he knows"
the contents thereof being the author thereof. When an examinee is
"permitted to examine an answer-book or obtain a certified copy, the"
examining body is not really giving him some information which is held by
"it in trust or confidence, but is only giving him an opportunity to read what"
he had written at the time of examination or to have a copy of his answers.
"Therefore, in furnishing the copy of an answer-book, there is no question of"
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is"
not in regard to the answer-book but in regard to the marks awarded on
evaluation of the answer-book. Even here the total marks given to the
examinee in regard to his answer-book are already declared and known to
the examinee. What the examinee actually wants to know is the break-up of
"marks given to him, that is how many marks were given by the examiner to"
38
each of his answers so that he can assess how is performance has been
evaluated and whether the evaluation is proper as per his hopes and
"expectations. Therefore, the test for finding out whether the information is"
"exempted or not, is not in regard to the answer book but in regard to the"
evaluation by the examiner.
26. This takes us to the crucial issue of evaluation by the examiner. The
examining body engages or employs hundreds of examiners to do the
evaluation of thousands of answer books. The question is whether the
information relating to the ‘evaluation’ (that is assigning of marks) is held
by the examining body in a fiduciary relationship. The examining bodies
contend that even if fiduciary relationship does not exist with reference to
"the examinee, it exists with reference to the examiner who evaluates the"
answer-books. On a careful examination we find that this contention has no
merit. The examining body entrusts the answer-books to an examiner for
evaluation and pays the examiner for his expert service. The work of
evaluation and marking the answer-book is an assignment given by the
examining body to the examiner which he discharges for a consideration.
"Sometimes, an examiner may assess answer-books, in the course of his"
"employment, as a part of his duties without any specific or special"
39
remuneration. In other words the examining body is the ‘principal’ and the
"examiner is the agent entrusted with the work, that is, evaluation of answer-"
"books. Therefore, the examining body is not in the position of a fiduciary"
"with reference to the examiner. On the other hand, when an answer-book is"
"entrusted to the examiner for the purpose of evaluation, for the period the"
answer-book is in his custody and to the extent of the discharge of his
"functions relating to evaluation, the examiner is in the position of a fiduciary"
with reference to the examining body and he is barred from disclosing the
contents of the answer-book or the result of evaluation of the answer-book to
anyone other than the examining body. Once the examiner has evaluated the
"answer books, he ceases to have any interest in the evaluation done by him."
"He does not have any copy-right or proprietary right, or confidentiality right"
in regard to the evaluation. Therefore it cannot be said that the examining
"body holds the evaluated answer books in a fiduciary relationship, qua the"
examiner.
"27. We, therefore, hold that an examining body does not hold the"
evaluated answer-books in a fiduciary relationship. Not being information
"available to an examining body in its fiduciary relationship, the exemption"
under section 8(1)(e) is not available to the examining bodies with reference
to evaluated answer-books. As no other exemption under section 8 is
40
"available in respect of evaluated answer books, the examining bodies will"
have to permit inspection sought by the examinees.
Re : Question (iv)
28. When an examining body engages the services of an examiner to
"evaluate the answer-books, the examining body expects the examiner not to"
disclose the information regarding evaluation to anyone other than the
examining body. Similarly the examiner also expects that his name and
particulars would not be disclosed to the candidates whose answer-books are
"evaluated by him. In the event of such information being made known, a"
disgruntled examinee who is not satisfied with the evaluation of the answer
"books, may act to the prejudice of the examiner by attempting to endanger"
"his physical safety. Further, any apprehension on the part of the examiner"
"that there may be danger to his physical safety, if his identity becomes"
"known to the examinees, may come in the way of effective discharge of his"
"duties. The above applies not only to the examiner, but also to the"
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book."
The answer book usually contains not only the signature and code number of
"the examiner, but also the signatures and code number of the scrutiniser/co-"
ordinator/head examiner. The information as to the names or particulars of
the examiners/co-ordinators/scrutinisers/head examiners are therefore
41
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground"
"that if such information is disclosed, it may endanger their physical safety."
"Therefore, if the examinees are to be given access to evaluated answer-"
"books either by permitting inspection or by granting certified copies, such"
access will have to be given only to that part of the answer-book which does
not contain any information or signature of the examiners/co-
"ordinators/scrutinisers/head examiners, exempted from disclosure under"
section 8(1)(g) of RTI Act. Those portions of the answer-books which
contain information regarding the examiners/co-ordinators/scrutinisers/head
examiners or which may disclose their identity with reference to signature or
"initials, shall have to be removed, covered, or otherwise severed from the"
"non-exempted part of the answer-books, under section 10 of RTI Act."
29. The right to access information does not extend beyond the period
during which the examining body is expected to retain the answer-books. In
"the case of CBSE, the answer-books are required to be maintained for a"
period of three months and thereafter they are liable to be disposed
of/destroyed. Some other examining bodies are required to keep the answer-
books for a period of six months. The fact that right to information is
available in regard to answer-books does not mean that answer-books will
have to be maintained for any longer period than required under the rules
42
and regulations of the public authority. The obligation under the RTI Act is
to make available or give access to existing information or information
which is expected to be preserved or maintained. If the rules and regulations
governing the functioning of the respective public authority require
"preservation of the information for only a limited period, the applicant for"
information will be entitled to such information only if he seeks the
"information when it is available with the public authority. For example, with"
"reference to answer-books, if an examinee makes an application to CBSE for"
inspection or grant of certified copies beyond three months (or six months or
such other period prescribed for preservation of the records in regard to
"other examining bodies) from the date of declaration of results, the"
application could be rejected on the ground that such information is not
available. The power of the Information Commission under section 19(8) of
the RTI Act to require a public authority to take any such steps as may be
"necessary to secure compliance with the provision of the Act, does not"
"include a power to direct the public authority to preserve the information, for"
any period larger than what is provided under the rules and regulations of the
public authority.
"30. On behalf of the respondents/examinees, it was contended that having"
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on"
43
the part of every public authority to maintain the information for a minimum
period of twenty years and make it available whenever an application was
made in that behalf. This contention is based on a complete misreading and
misunderstanding of section 8(3). The said sub-section nowhere provides
that records or information have to be maintained for a period of twenty
years. The period for which any particular records or information has to be
maintained would depend upon the relevant statutory rule or regulation of
the public authority relating to the preservation of records. Section 8(3)
"provides that information relating to any occurrence, event or matters which"
has taken place and occurred or happened twenty years before the date on
"which any request is made under section 6, shall be provided to any person"
making a request. This means that where any information required to be
maintained and preserved for a period beyond twenty years under the rules
"of the public authority, is exempted from disclosure under any of the"
"provisions of section 8(1) of RTI Act, then, notwithstanding such"
"exemption, access to such information shall have to be provided by"
"disclosure thereof, after a period of twenty years except where they relate to"
"information falling under clauses (a), (c) and (i) of section 8(1). In other"
"words, section 8(3) provides that any protection against disclosure that may"
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to"
44
be available after twenty years in regard to records which are required to be
preserved for more than twenty years. Where any record or information is
required to be destroyed under the rules and regulations of a public authority
"prior to twenty years, section 8(3) will not prevent destruction in accordance"
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring
"all ‘information’ to be preserved and maintained for twenty years or more,"
nor does it override any rules or regulations governing the period for which
"the record, document or information is required to be preserved by any"
public authority.
31. The effect of the provisions and scheme of the RTI Act is to divide
‘information’ into the three categories. They are :
(i) Information which promotes transparency and accountability in
"the working of every public authority, disclosure of which may"
also help in containing or discouraging corruption (enumerated in
clauses (b) and (c) of section 4(1) of RTI Act).
(ii) Other information held by public authority (that is all information
other than those falling under clauses (b) and (c) of section 4(1) of
RTI Act).
(iii) Information which is not held by or under the control of any
public authority and which cannot be accessed by a public
authority under any law for the time being in force.
Information under the third category does not fall within the scope of RTI
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held"
45
"by or under the control of a public authority, which falls either under the first"
or second category. In regard to the information falling under the first
"category, there is also a special responsibility upon public authorities to suo"
moto publish and disseminate such information so that they will be easily
and readily accessible to the public without any need to access them by
having recourse to section 6 of RTI Act. There is no such obligation to
publish and disseminate the other information which falls under the second
category.
"32. The information falling under the first category, enumerated in"
sections 4(1)(b) & (c) of RTI Act are extracted below :
“4. Obligations of public authorities.-(1) Every public authority shall--
(a) xxxxxx
(b) publish within one
"hundred and twenty days from the enactment of this Act,--"
"(i) the particulars of its organisation, functions and duties;"
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making
"process, including channels of supervision and"
accountability;
(iv) the norms set by it for the discharge of its functions;
"(v) the rules, regulations, instructions, manuals and records,"
held by it or under its control or used by its employees for
discharging its functions;
(vi) a statement of the categories of documents that are held
by it or under its control;
46
(vii) the particulars of any arrangement that exists for
"consultation with, or representation by, the members of the"
public in relation to the formulation of its policy or
implementation thereof;
"(viii) a statement of the boards, councils, committees and"
other bodies consisting of two or more persons constituted
"as its part or for the purpose of its advice, and as to whether"
"meetings of those boards, councils, committees and other"
"bodies are open to the public, or the minutes of such"
meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its
"officers and employees, including the system of"
compensation as provided in its regulations;
"(xi) the budget allocated to each of its agency, indicating"
"the particulars of all plans, proposed expenditures and"
reports on disbursements made;
"(xii) the manner of execution of subsidy programmes,"
including the amounts allocated and the details of
beneficiaries of such programmes;
"(xiii) particulars of recipients of concessions, permits or"
authorisations granted by it;
"(xiv) details in respect of the information, available to or"
"held by it, reduced in an electronic form;"
(xv) the particulars of facilities available to citizens for
"obtaining information, including the working hours of a"
"library or reading room, if maintained for public use;"
"(xvi) the names, designations and other particulars of the"
Public Information Officers;
(xvii) such other information as may be prescribed; and
thereafter update these publications every year;
(c) publish all relevant facts
while formulating important policies or announcing the decisions
which affect public;
(emphasis supplied)
47
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of"
information enumerated in sections 4(1)(b) & (c) are extracted below:
“(2) It shall be a constant endeavour of every public
authority to take steps in accordance with the requirements of clause (b) of
sub-section (1) to provide as much information suo motu to the public
"at regular intervals through various means of communications,"
"including internet, so that the public have minimum resort to the use"
of this Act to obtain information.
"(3) For the purposes of sub-section (1), every"
information shall be disseminated widely and in such form and
manner which is easily accessible to the public.
(4) All materials shall be disseminated taking into
"consideration the cost effectiveness, local language and the most effective"
method of communication in that local area and the information should be
"easily accessible, to the extent possible in electronic format with the"
"Central Public Information Officer or State Public Information Officer, as"
"the case may be, available free or at such cost of the medium or the print"
cost price as may be prescribed.
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated"""
means making known or communicated the information to the public
"through notice boards, newspapers, public announcements, media"
"broadcasts, the internet or any other means, including inspection of offices"
of any public authority.”
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act is in the nature
of an exception to section 3 which empowers the citizens with the right to
"information, which is a derivative from the freedom of speech; and that"
"therefore section 8 should be construed strictly, literally and narrowly. This"
may not be the correct approach. The Act seeks to bring about a balance
"between two conflicting interests, as harmony between them is essential for"
preserving democracy. One is to bring about transparency and accountability
by providing access to information under the control of public authorities.
48
"The other is to ensure that the revelation of information, in actual practice,"
does not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidentiality of sensitive information. The preamble to the
Act specifically states that the object of the Act is to harmonise these two
conflicting interests. While sections 3 and 4 seek to achieve the first
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective."
"Therefore when section 8 exempts certain information from being disclosed,"
"it should not be considered to be a fetter on the right to information, but as"
an equally important provision protecting other public interests essential for
the fulfilment and preservation of democratic ideals.
34. When trying to ensure that the right to information does not conflict
with several other public interests (which includes efficient operations of the
"governments, preservation of confidentiality of sensitive information,"
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and"
enumerate all types of information which require to be exempted from
disclosure in public interest. The legislature has however made an attempt to
do so. The enumeration of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier Act that is section 8 of
"Freedom to Information Act, 2002. The Courts and Information"
49
Commissions enforcing the provisions of RTI Act have to adopt a purposive
"construction, involving a reasonable and balanced approach which"
"harmonises the two objects of the Act, while interpreting section 8 and the"
other provisions of the Act.
"35. At this juncture, it is necessary to clear some misconceptions about"
the RTI Act. The RTI Act provides access to all information that is
available and existing. This is clear from a combined reading of section 3
and the definitions of ‘information’ and ‘right to information’ under clauses
(f) and (j) of section 2 of the Act. If a public authority has any information in
"the form of data or analysed data, or abstracts, or statistics, an applicant may"
"access such information, subject to the exemptions in section 8 of the Act."
But where the information sought is not a part of the record of a public
"authority, and where such information is not required to be maintained under"
"any law or the rules or regulations of the public authority, the Act does not"
"cast an obligation upon the public authority, to collect or collate such non-"
available information and then furnish it to an applicant. A public authority
is also not required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not required to provide
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any"
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’
50
"in the definition of ‘information’ in section 2(f) of the Act, only refers to"
such material available in the records of the public authority. Many public
"authorities have, as a public relation exercise, provide advice, guidance and"
opinion to the citizens. But that is purely voluntary and should not be
confused with any obligation under the RTI Act.
36. Section 19(8) of RTI Act has entrusted the Central/State Information
"Commissions, with the power to require any public authority to take any"
such steps as may be necessary to secure the compliance with the provisions
"of the Act. Apart from the generality of the said power, clause (a) of section"
"19(8) refers to six specific powers, to implement the provision of the Act."
Sub-clause (i) empowers a Commission to require the public authority to
provide access to information if so requested in a particular ‘form’ (that is
"either as a document, micro film, compact disc, pendrive, etc.). This is to"
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a
Commission to require the public authority to appoint a Central Public
Information Officer or State Public Information Officer. This is to secure
compliance with section 5 of the Act. Sub-clause (iii) empowers the
Commission to require a public authority to publish certain information or
categories of information. This is to secure compliance with section 4(1) and
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public
51
authority to make necessary changes to its practices relating to the
"maintenance, management and destruction of the records. This is to secure"
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)
empowers a Commission to require the public authority to increase the
training for its officials on the right to information. This is to secure
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a"
Commission to require the public authority to provide annual reports in
regard to the compliance with clause (b) of section 4(1). This is to ensure
compliance with the provisions of clause (b) of section 4(1) of the Act. The
power under section 19(8) of the Act however does not extend to requiring a
public authority to take any steps which are not required or contemplated to
secure compliance with the provisions of the Act or to issue directions
beyond the provisions of the Act. The power under section 19(8) of the Act
is intended to be used by the Commissions to ensure compliance with the
"Act, in particular ensure that every public authority maintains its records"
duly catalogued and indexed in the manner and in the form which facilitates
"the right to information and ensure that the records are computerized, as"
required under clause (a) of section 4(1) of the Act; and to ensure that the
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are
"published and disseminated, and are periodically updated as provided in sub-"
52
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated
in clause (b) of section 4(1) of the Act are effectively disseminated (by
"publications in print and on websites and other effective means), apart from"
"providing transparency and accountability, citizens will be able to access"
relevant information and avoid unnecessary applications for information
under the Act.
37. The right to information is a cherished right. Information and right to
information are intended to be formidable tools in the hands of responsible
citizens to fight corruption and to bring in transparency and accountability.
The provisions of RTI Act should be enforced strictly and all efforts should
be made to bring to light the necessary information under clause (b) of
section 4(1) of the Act which relates to securing transparency and
accountability in the working of public authorities and in discouraging
"corruption. But in regard to other information,(that is information other than"
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance"
and emphasis are given to other public interests (like confidentiality of
"sensitive information, fidelity and fiduciary relationships, efficient operation"
"of governments, etc.). Indiscriminate and impractical demands or directions"
under RTI Act for disclosure of all and sundry information (unrelated to
transparency and accountability in the functioning of public authorities and
53
eradication of corruption) would be counter-productive as it will adversely
affect the efficiency of the administration and result in the executive getting
bogged down with the non-productive work of collecting and furnishing
"information. The Act should not be allowed to be misused or abused, to"
"become a tool to obstruct the national development and integration, or to"
"destroy the peace, tranquility and harmony among its citizens. Nor should it"
be converted into a tool of oppression or intimidation of honest officials
striving to do their duty. The nation does not want a scenario where 75% of
the staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular
duties. The threat of penalties under the RTI Act and the pressure of the
authorities under the RTI Act should not lead to employees of a public
"authorities prioritising ‘information furnishing’, at the cost of their normal"
and regular duties.
Conclusion
"38. In view of the foregoing, the order of the High Court directing the"
examining bodies to permit examinees to have inspection of their answer
"books is affirmed, subject to the clarifications regarding the scope of the RTI"
54
Act and the safeguards and conditions subject to which ‘information’ should
be furnished. The appeals are disposed of accordingly.
……………………….J
[R. V. Raveendran]
……………………….J
[A. K. Patnaik]
New Delhi;
"August 9, 2011."
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9052 OF 2012
(Arising out of SLP (C) No.20217 of 2011)
Bihar Public Service Commission ...
Appellant
Versus
Saiyed Hussain Abbas Rizwi & Anr. ...
Respondents
J U D G M E N T
"Swatanter Kumar, J."
1. Leave granted.
"2. The Bihar Public Service Commission (for short, ‘the"
Commission) published advertisement No.6 of 2000 dated 10th
"May, 2000 in the local papers of the State of Bihar declaring its"
intention to fill up the posts of ‘State Examiner of Questioned
"Documents’, in Police Laboratory in Crime Investigation"
"Department, Government of Bihar, Patna. The advertisement,"
Page 1
"inter alia, stated that written examination would be held if"
adequate number of applications were received. As very
"limited number of applications were received, the Commission,"
"in terms of the advertisement, decided against the holding of"
written examination. It exercised the option to select the
candidates for appointment to the said post on the basis of viva
voce test alone. The Commission completed the process of
selection and recommended the panel of selected candidates
to the State of Bihar.
"3. One Saiyed Hussain Abbas Rizwi, respondent No.1 herein,"
"claiming to be a public spirited citizen, filed an application"
before the Commission (appellant herein) under the Right to
"Information Act, 2005 (for short “the Act”) on 16th December,"
2008 seeking information in relation to eight queries. These
queries concerned the interview which was held on 30th
"September, 2002 and 1st October, 2002 by the Commission"
"with regard to the above advertisement. These queries, inter"
"alia, related to providing the names, designation and addresses"
"of the subject experts present in the Interview Board, names"
"and addresses of the candidates who appeared, the interview"
statement with certified photocopies of the marks of all the
2
Page 2
"candidates, criteria for selection of the candidates, tabulated"
statement containing average marks allotted to the candidates
from matriculation to M.Sc. during the selection process with
the signatures of the members/officers and certified copy of the
merit list. This application remained pending with the Public
Information Officer of the Commission for a considerable time
that led to filing of an appeal by respondent No.1 before the
State Information Commission. When the appeal came up for
"hearing, the State Information Commission vide its order dated"
"30th April, 2009 had directed the Public Information Officer-cum-"
Officer on Special Duty of the Commission that the information
sought for be made available and the case was fixed for 27th
"August, 2009 when the following order was passed :"
“The applicant is present. A letter dated
12.08.2009 of the Public Information
"Officer, Bihar Public Service Commission,"
Patna has been received whereby the
required paragraph-wise information which
"could be supplied, has been given to the"
applicant. Since the information which
could be supplied has been given to the
"applicant, the proceedings of the case are"
closed.”
"4. At this stage, we may also notice that the Commission,"
"vide its letter dated 12th August, 2009, had furnished the"
3
Page 3
information nearly to all the queries of respondent No.1. It also
stated that no written test had been conducted and that the
"name, designation and addresses of the members of the"
Interview Board could not be furnished as they were not
required to be supplied in accordance with the provisions of
Section 8(1)(g) of the Act.
5. Aggrieved from the said order of the Information
"Commission dated 27th August, 2009, respondent No.1"
challenged the same by filing a writ before the High Court of
Judicature at Patna. The matter came up for hearing before a
"learned Judge of that Court, who, vide judgment dated 27th"
"November, 2009 made the following observations and"
dismissed the writ petition :
“If information with regard to them is
"disclosed, the secrecy and the authenticity"
of the process itself may be jeopardized
apart from that information would be an
unwarranted invasion into privacy of the
individual. Restricting giving this
information has a larger public purpose
behind it. It is to maintain purity of the
"process of selection. Thus, in view of"
"specific provision in Section 8(1)(j), in my"
"view, the information could not be"
demanded as matter of right. The
designated authority in that organization
also did not consider it right to divulge the
4
Page 4
"information in larger public interest, as"
provided in the said provision.”
"6. Feeling aggrieved, respondent No.1 challenged the"
judgment of the learned Single Judge before the Division Bench
of that Court by filing a letters patent appeal being LPA No.102
"of 2010. The Division Bench, amongst others, noticed the"
following contentions :
(i) that third party interest was involved in providing the
"information asked for and, therefore, could properly be"
denied in terms of Section 2(n) read with Sections 8(1)(j)
and 11 of the Act.
(ii) that respondent No.1 (the applicant) was a mere
busybody and not a candidate himself and was attempting
to meddle with the affairs of the Commission needlessly.
7. The Division Bench took the view that the provisions of
Section 8(1)(j) were not attracted in the facts of the case in
hand inasmuch as this provision had application in respect of
law enforcement agency and for security purposes. Since no
such consideration arose with respect to the affairs of the
"Commission and its function was in public domain, reliance on"
5
Page 5
the said provision for denying the information sought for was
"not tenable in law. Thus, the Court in its order dated 20th"
"January, 2011 accepted the appeal, set aside the order of the"
learned Single Judge and directed the Commission to
communicate the information sought for to respondent No.1.
The Court directed the Commission to provide the names of the
"members of the Interview Board, while denying the disclosure"
of and providing photocopies of the papers containing the
signatures and addresses of the members of the Interview
Board.
8. The Commission challenging the legality and correctness
of the said judgment has filed the present appeal by way of
special leave.
9. The question that arises for consideration in the present
case is as to whether the Commission was duty bound to
disclose the names of the members of the Interview Board to
"any person including the examinee. Further, when the"
Commission could take up the plea of exemption from
disclosure of information as contemplated under Section 8 of
the Act in this regard.
6
Page 6
"10. Firstly, we must examine the purpose and scheme of this"
"Act. For this purpose, suffice would it be to refer to the"
judgment of this Court in the case of Namit Sharma v. Union of
"India [2012 (8) SCALE 593], wherein this Court has held as"
under :
“27. In terms of the Statement of Objects
"and Reasons of the Act of 2002, it was"
stated that this law was enacted in order to
make the government more transparent
and accountable to the public. It was felt
"that in the present democratic framework,"
free flow of information for citizens and
non-Government institutions suffers from
several bottlenecks including the existing
"legal framework, lack of infrastructure at"
the grass root level and an attitude of
secrecy within the Civil Services as a result
of the old framework of rules. The Act was
to deal with all such aspects. The purpose
and object was to make the government
more transparent and accountable to the
public and to provide freedom to every
citizen to secure access to information
"under the control of public authorities,"
"consistent with public interest, in order to"
"promote openness, transparency and"
accountability in administration and in
relation to matters connected therewith or
incidental thereto.”
11. The scheme of the Act contemplates for setting out the
practical regime of right to information for citizens to secure
"access to information under the control of public authorities, in"
7
Page 7
order to promote transparency and accountability in the
working of every public authority. It was aimed at providing
free access to information with the object of making
governance more transparent and accountable. Another right
of a citizen protected under the Constitution is the right to
privacy. This right is enshrined within the spirit of Article 21 of
"the Constitution. Thus, the right to information has to be"
balanced with the right to privacy within the framework of law.
12. Where Section 3 of the Act grants right to citizens to have
"access to information, there Section 4 places an obligation upon"
the public authorities to maintain records and provide the
prescribed information. Once an application seeking
"information is made, the same has to be dealt with as per"
Sections 6 and 7 of the Act. The request for information is to be
disposed of within the time postulated under the provisions of
Section 7 of the Act. Section 8 is one of the most important
provisions of the Act as it is an exception to the general rule of
obligation to furnish information. It gives the category of cases
where the public authority is exempted from providing the
"information. To such exemptions, there are inbuilt exceptions"
"under some of the provisions, where despite exemption, the"
8
Page 8
Commission may call upon the authority to furnish the
information in the larger public interest. This shows the wide
scope of these provisions as intended by the framers of law. In
"such cases, the Information Commission has to apply its mind"
whether it is a case of exemption within the provisions of the
said section.
13. Right to information is a basic and celebrated
fundamental/basic right but is not uncontrolled. It has its
"limitations. The right is subject to a dual check. Firstly, this"
right is subject to the restrictions inbuilt within the Act and
secondly the constitutional limitations emerging from Article 21
"of the Constitution. Thus, wherever in response to an"
"application for disclosure of information, the public authority"
"takes shelter under the provisions relating to exemption, non-"
"applicability or infringement of Article 21 of the Constitution,"
the State Information Commission has to apply its mind and
form an opinion objectively if the exemption claimed for was
sustainable on facts of the case.
"14. Now, we have to examine whether the Commission is a"
public authority within the meaning of the Act. The expression
‘public authority’ has been given an exhaustive definition under
9
Page 9
section 2(h) of the Act as the Legislature has used the word
"‘means’ which is an expression of wide connotation. Thus,"
‘public authority’ is defined as any authority or body or
"institution of the Government, established or constituted by the"
Government which falls in any of the stated categories under
"Section 2(h) of the Act. In terms of Section 2(h)(a), a body or"
an institution which is established or constituted by or under
the Constitution would be a public authority. Public Service
Commission is established under Article 315 of the Constitution
of India and as such there cannot be any escape from the
conclusion that the Commission shall be a public authority
within the scope of this section.
15. Section 2(f) again is exhaustive in nature. The Legislature
has given meaning to the expression ‘information’ and has
stated that it shall mean any material in any form including
"papers, samples, data material held in electronic form, etc."
Right to information under Section 2(j) means the ‘right to
information’ accessible under this Act which is held by or under
the control of any public authority and includes the right to
"inspection of work, documents, records, taking notes, extracts,"
"taking certified sample of materials, obtaining information in"
10
Page 10
"the form of diskettes, floppies and video cassettes, etc. The"
right sought to be exercised and information asked for should
fall within the scope of ‘information’ and ‘right to information’
as defined under the Act.
"16. Thus, what has to be seen is whether the information"
sought for in exercise of right to information is one that is
permissible within the framework of law as prescribed under the
Act. If the information called for falls in any of the categories
specified under Section 8 or relates to the organizations to
which the Act itself does not apply in terms of section 24 of the
"Act, the public authority can take such stand before the"
commission and decline to furnish such information. Another
aspect of exercise of this right is that where the information
"asked for relates to third party information, the Commission is"
required to follow the procedure prescribed under Section 11 of
the Act.
"17. Before the High Court, reliance had been placed upon"
"Section 8(1)(j) and Section 11 of the Act. On facts, the"
controversy in the present case falls within a very narrow
compass. Most of the details asked for by the applicant have
already been furnished. The dispute between the parties
11
Page 11
"related only to the first query of the applicant, that is, with"
regard to disclosure of the names and addresses of the
members of the Interview Board.
"18. On behalf of the Commission, reliance was placed upon"
Section 8(1)(j) and Section 11 of the Act to contend that
disclosure of the names would endanger the life of the
members of the interview board and such disclosure would also
cause unwarranted invasion of the privacy of the interviewers.
"Further, it was contended that this information related to third"
party interest. The expression ‘third party’ has been defined in
Section 2(n) of the Act to mean a person other than the citizen
making a request for information and includes a public
"authority. For these reasons, they were entitled to the"
exemption contemplated under Section 8(1)(j) and were not
liable to disclose the required information. It is also contended
on behalf of the Commission that the Commission was entitled
to exemption under Sections 8(1)(e) and 8(1)(g) read together.
"19. On the contrary, the submission on behalf of the applicant"
was that it is an information which the applicant is entitled to
receive. The Commission was not entitled to any exemption
12
Page 12
"under any of the provisions of Section 8, and therefore, was"
obliged to disclose the said information to the applicant.
"20. In the present case, we are not concerned with the"
correctness or otherwise of the method adopted for selection of
"the candidates. Thus, the fact that no written examination was"
held and the selections were made purely on the basis of viva
"voce, one of the options given in the advertisement itself, does"
not arise for our consideration. We have to deal only with the
plea as to whether the information asked for by the applicant
should be directed to be disclosed by the Commission or
whether the Commission is entitled to the exemption under the
stated provisions of Section 8 of the Act.
21. Section 8 opens with the non obstante language and is an
exception to the furnishing of information as is required under
the relevant provisions of the Act. During the course of the
"hearing, it was not pressed before us that the Commission is"
entitled to the exemption in terms of Section 8(1)(j) of the Act.
"In view of this, we do not propose to discuss this issue any"
further nor would we deal with the correctness or otherwise of
the impugned judgment of the High Court in that behalf.
13
Page 13
22. Section 8(1)(e) provides an exemption from furnishing of
"information, if the information available to a person is in his"
fiduciary relationship unless the competent authority is
satisfied that larger public interest warrants the disclosure of
"such information. In terms of Section 8(1)(g), the public"
authority is not obliged to furnish any such information the
disclosure of which would endanger the life or physical safety of
any person or identify the source of information or assistance
given in confidence for law enforcement and security purposes.
If the concerned public authority holds the information in
"fiduciary relationship, then the obligation to furnish information"
is obliterated. But if the competent authority is still satisfied
"that in the larger public interest, despite such objection, the"
"information should be furnished, it may so direct the public"
authority. The term ‘fiduciary’ refers to a person having a duty
"to act for the benefit of another, showing good faith and"
"condour, where such other person reposes trust and special"
confidence in the person owing or discharging the duty. The
term ‘fiduciary relationship’ is used to describe a situation or
transaction where one person places complete confidence in
"another person in regard to his affairs, business or transactions."
14
Page 14
This aspect has been discussed in some detail in the judgment
of this Court in the case of Central Board of Secondary
"Education (supra). Section 8(1)(e), therefore, carves out a"
protection in favour of a person who possesses information in
his fiduciary relationship. This protection can be negated by
the competent authority where larger public interest warrants
"the disclosure of such information, in which case, the authority"
is expected to record reasons for its satisfaction. Another very
significant provision of the Act is 8(1)(j). In terms of this
"provision, information which relates to personal information,"
the disclosure of which has no relationship to any public activity
or interest or which would cause unwarranted invasion of the
privacy of the individual would fall within the exempted
"category, unless the authority concerned is satisfied that larger"
"public interest justifies the disclosure of such information. It is,"
"therefore, to be understood clearly that it is a statutory"
exemption which must operate as a rule and only in
"exceptional cases would disclosure be permitted, that too, for"
reasons to be recorded demonstrating satisfaction to the test of
larger public interest. It will not be in consonance with the
"spirit of these provisions, if in a mechanical manner, directions"
15
Page 15
are passed by the appropriate authority to disclose information
which may be protected in terms of the above provisions. All
information which has come to the notice of or on record of a
person holding fiduciary relationship with another and but for
"such capacity, such information would not have been provided"
"to that authority, would normally need to be protected and"
would not be open to disclosure keeping the higher standards
of integrity and confidentiality of such relationship. Such
exemption would be available to such authority or department.
23. The expression ‘public interest’ has to be understood in its
true connotation so as to give complete meaning to the
relevant provisions of the Act. The expression ‘public interest’
must be viewed in its strict sense with all its exceptions so as to
justify denial of a statutory exemption in terms of the Act. In its
"common parlance, the expression ‘public interest’, like ‘public"
"purpose’, is not capable of any precise definition . It does not"
"have a rigid meaning, is elastic and takes its colour from the"
"statute in which it occurs, the concept varying with time and"
state of society and its needs. [State of Bihar v. Kameshwar
Singh (AIR 1952 SC 252)]. It also means the general welfare of
the public that warrants recommendation and protection;
16
Page 16
something in which the public as a whole has a stake [Black’s
Law Dictionary (Eighth Edition)].
24. The satisfaction has to be arrived at by the authorities
objectively and the consequences of such disclosure have to be
weighed with regard to circumstances of a given case. The
decision has to be based on objective satisfaction recorded for
ensuring that larger public interest outweighs unwarranted
invasion of privacy or other factors stated in the provision.
"Certain matters, particularly in relation to appointment, are"
required to be dealt with great confidentiality. The information
may come to knowledge of the authority as a result of
disclosure by others who give that information in confidence
"and with complete faith, integrity and fidelity. Secrecy of such"
"information shall be maintained, thus, bringing it within the"
"ambit of fiduciary capacity. Similarly, there may be cases"
where the disclosure has no relationship to any public activity
or interest or it may even cause unwarranted invasion of
privacy of the individual. All these protections have to be given
their due implementation as they spring from statutory
exemptions. It is not a decision simpliciter between private
interest and public interest. It is a matter where a
17
Page 17
constitutional protection is available to a person with regard to
"the right to privacy. Thus, the public interest has to be"
construed while keeping in mind the balance factor between
right to privacy and right to information with the purpose
sought to be achieved and the purpose that would be served in
"the larger public interest, particularly when both these rights"
emerge from the constitutional values under the Constitution of
India.
"25. First of all, the Court has to decide whether in the facts of"
"the present case, the Commission holds any fiduciary"
relationship with the examinee or the interviewers. Discussion
on this question need not detain us any further as it stands fully
answered by a judgment of this Court in the case of Central
Board of Secondary Education & Anr. v. Aditya Bandopadhyay
& Ors. [(2011) 8 SCC 497] wherein the Court held as under :
“40. 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-à-vis another partner and an
employer vis-à-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.
18
Page 18
"Similarly, if on the request of the employer"
or official superior or the head of a
"department, an employee furnishes his"
"personal details and information, to be"
"retained in confidence, the employer, the"
official superior or departmental head is
expected to hold such personal information
"in confidence as a fiduciary, to be made"
use of or disclosed only if the employee’s
conduct or acts are found to be prejudicial
to the employer.
"41. In a philosophical and very wide sense,"
examining bodies can be said to act in a
"fiduciary capacity, with reference to the"
"students who participate in an examination,"
as a Government does while governing its
citizens or as the present generation does
with reference to the future generation
while preserving the environment. But the
words “information available to a person in
his fiduciary relationship” are used in
Section 8(1)(e) of the RTI Act in its normal
"and well-recognised sense, that is, to refer"
"to persons who act in a fiduciary capacity,"
with reference to a specific beneficiary or
beneficiaries who are to be expected to be
protected or benefited by the actions of the
fiduciary—a trustee with reference to the
"beneficiary of the trust, a guardian with"
reference to a minor/physically infirm/
"mentally challenged, a parent with"
"reference to a child, a lawyer or a chartered"
"accountant with reference to a client, a"
"doctor or nurse with reference to a patient,"
"an agent with reference to a principal, a"
"partner with reference to another partner, a"
Director of a company with reference to a
"shareholder, 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"
19
Page 19
reference to business dealings/transaction
of the employer. We 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.
42. The duty of examining bodies is to
subject the candidates who have completed
a course of study or a period of training in
"accordance with its curricula, to a process"
of verification/examination/testing of their
"knowledge, ability or skill, or to ascertain"
whether they can be said to have
successfully completed or passed the
course of study or training. Other
specialised examining bodies may simply
subject the candidates to a process of
"verification by an examination, to find out"
whether such person is suitable for a
"particular post, job or assignment. An"
"examining body, if it is a public authority"
"entrusted with public functions, is required"
"to act fairly, reasonably, uniformly and"
consistently for public good and in public
interest.
43. This Court has explained the role of an
examining body in regard to the process of
holding examination in the context of
examining whether it amounts to “service”
"to a consumer, in Bihar School Examination"
Board v. Suresh Prasad Sinha in the
"following manner: (SCC p. 487, paras 11-"
13)
“11. … 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
20
Page 20
this function as partly statutory and
partly administrative.
12. When the Examination Board
conducts an examination in discharge
"of its statutory function, it does not"
offer its ‘services’ to any candidate.
Nor does a student who participates in
the examination conducted by the
"Board, hire or avail of any service from"
the Board for a consideration. On the
"other hand, a candidate who"
participates in the examination
"conducted by the Board, is a person"
who has undergone a course of study
and who requests the Board to test
him as to whether he has imbibed
sufficient knowledge to be fit to be
declared as having successfully
completed the said course of
"education; and if so, determine his"
position or rank or competence vis-à-
vis other examinees. The process is
"not, therefore, availment of a service"
"by a student, but participation in a"
general examination conducted by the
Board to ascertain whether he is
eligible and fit to be considered as
having successfully completed the
secondary education course. The
examination fee paid by the student is
not the consideration for availment of
"any service, but the charge paid for"
the privilege of participation in the
examination.
13. … The fact that in the course
"of conduct of the examination, or"
"evaluation of answer scripts, or"
furnishing of marksheets or
"certificates, there may be some"
"negligence, omission or deficiency,"
does not convert the Board into a
21
Page 21
"service provider for a consideration,"
nor convert the examinee into a
consumer….”
It cannot therefore be said that the
examining body is in a fiduciary
relationship either with reference to the
examinee who participates in the
examination and whose answer books are
evaluated by the examining body.
XXX XXX XXX
49. The examining body entrusts the
answer books to an examiner for evaluation
and pays the examiner for his expert
service. The work of evaluation and
marking the answer book is an assignment
given by the examining body to the
examiner which he discharges for a
"consideration. Sometimes, an examiner"
"may assess answer books, in the course of"
"his employment, as a part of his duties"
without any specific or special
"remuneration. In other words, the"
examining body is the “principal” and the
examiner is the “agent” entrusted with the
"work, that is, the evaluation of answer"
"books. Therefore, the examining body is not"
in the position of a fiduciary with reference
to the examiner.”
(emphasis supplied)
"26. We, with respect, would follow the above reasoning of the"
"Bench and, thus, would have no hesitation in holding that in the"
"present case, the examining body (the Commission), is in no"
fiduciary relationship with the examinee (interviewers) or the
candidate interviewed. Once the fiduciary relationship is not
22
Page 22
"established, the obvious consequence is that the Commission"
cannot claim exemption as contemplated under Section 8(1)(e)
of the Act. The question of directing disclosure for a larger
"public interest, therefore, would not arise at all."
"27. In CBSE case (supra), this Court had clearly stated the"
view that an examiner who examines the answer sheets holds
the relationship of principal and agent with the examining body.
"Applying the same principle, it has to be held that the"
interviewers hold the position of an ‘agent’ vis-a-vis the
examining body which is the ‘principal’. This relationship per se
is not relatable to any of the exemption clauses but there are
"some clauses of exemption, the foundation of which is not a"
particular relationship like fiduciary relationship. Clause 8(1)(g)
can come into play with any kind of relationship. It requires
that where the disclosure of information would endanger the life
or physical safety of any person or identify the source of
information or assistance given in confidence for law
"enforcement or security purposes, the information need not be"
provided. The High Court has rejected the application of
Section 8(1)(g) on the ground that it applies only with regard to
law enforcement or security purposes and does not have
23
Page 23
general application. This reasoning of the High Court is
contrary to the very language of Section 8(1)(g). Section 8(1)
(g) has various clauses in itself.
"28. Now, let us examine the provisions of Section 8(1)(g) with"
greater emphasis on the expressions that are relevant to the
present case. This section concerns with the cases where no
obligation is cast upon the public authority to furnish
"information, the disclosure of which would endanger (a) the life"
"(b) physical safety of any person. The legislature, in its wisdom,"
has used two distinct expressions. They cannot be read or
construed as being synonymous. Every expression used by the
"Legislature must be given its intended meaning and, in fact, a"
purposeful interpretation. The expression ‘life’ has to be
construed liberally. ‘Physical safety’ is a restricted term while
life is a term of wide connotation. ‘Life’ includes reputation of
an individual as well as the right to live with freedom. The
expression ‘ life’ also appears in Article 21 of the Constitution
and has been provided a wide meaning so as to inter alia
"include within its ambit the right to live with dignity, right to"
"shelter, right to basic needs and even the right to reputation."
"The expression life under section 8(1(g) the Act, thus, has to be"
24
Page 24
understood in somewhat similar dimensions. The term
‘endanger’ or ‘endangerment’ means the act or an instance of
putting someone or something in danger; exposure to peril or
such situation which would hurt the concept of life as
understood in its wider sense [refer Black’s Law Dictionary
"(Eighth Edition)]. Of course, physical safety would mean the"
likelihood of assault to physical existence of a person. If in the
opinion of the concerned authority there is danger to life or
"possibility of danger to physical safety, the State Information"
Commission would be entitled to bring such case within the
exemption of Section 8(1)(g) of the Act. The disclosure of
information which would endanger the life or physical safety of
any person is one category and identification of the source of
information or assistance given in confidence for law
enforcement or security purposes is another category. The
expression ‘for law enforcement or security purposes’ is to be
read ejusdem generis only to the expression ‘assistance given
in confidence’ and not to any other clause of the section. On
"the plain reading of Section 8(1)(g), it becomes clear that the"
said clause is complete in itself. It cannot be said to have any
reference to the expression ‘assistance given in confidence for
25
Page 25
law enforcement or security purposes’. Neither the language of
the Section nor the object of the Section requires such
interpretation. It would not further the cause of this section.
Section 8 attempts to provide exemptions and once the
language of the Section is unambiguous and squarely deals
"with every situation, there is no occasion for the Court to"
frustrate the very object of the Section. It will amount to
misconstruing the provisions of the Act. The High Court though
"has referred to Section 8(1)(j) but has, in fact, dealt with the"
"language of Section 8(1)(g). The reasoning of the High Court,"
"therefore, is neither clear in reference to provision of the"
Section nor in terms of the language thereof.
"29. Now, the ancillary question that arises is as to the"
consequences that the interviewers or the members of the
interview board would be exposed to in the event their names
and addresses or individual marks given by them are directed
"to be disclosed. Firstly, the members of the Board are likely to"
be exposed to danger to their lives or physical safety.
"Secondly, it will hamper effective performance and discharge of"
their duties as examiners. This is the information available with
the examining body in confidence with the interviewers.
26
Page 26
Declaration of collective marks to the candidate is one thing
"and that, in fact, has been permitted by the authorities as well"
as the High Court. We see no error of jurisdiction or reasoning
in this regard. But direction to furnish the names and
addresses of the interviewers would certainly be opposed to the
very spirit of Section 8(1)(g) of the Act. CBSE case (supra) has
"given sufficient reasoning in this regard and at this stage, we"
may refer to paragraphs 52 and 53 of the said judgment which
read as under :
“52. When an examining body engages the
services of an examiner to evaluate the
"answer books, the examining body expects"
the examiner not to disclose the
information regarding evaluation to anyone
other than the examining body. Similarly
the examiner also expects that his name
and particulars would not be disclosed to
the candidates whose answer books are
evaluated by him. In the event of such
"information being made known, a"
disgruntled examinee who is not satisfied
"with the evaluation of the answer books,"
may act to the prejudice of the examiner by
attempting to endanger his physical safety.
"Further, any apprehension on the part of"
the examiner that there may be danger to
"his physical safety, if his identity becomes"
"known to the examinees, may come in the"
way of effective discharge of his duties. The
"above applies not only to the examiner, but"
"also to the scrutiniser, co-ordinator and"
27
Page 27
head examiner who deal with the answer
book.
53. The answer book usually contains not
only the signature and code number of the
"examiner, but also the signatures and code"
number of the scrutiniser/co-ordinator/head
examiner. The information as to the names
or particulars of the examiners/co-
ordinators/scrutinisers/head examiners are
therefore exempted from disclosure under
"Section 8(1)(g) of the RTI Act, on the"
"ground that if such information is disclosed,"
it may endanger their physical safety.
"Therefore, if the examinees are to be given"
access to evaluated answer books either by
permitting inspection or by granting
"certified copies, such access will have to be"
given only to that part of the answer book
which does not contain any information or
signature of the examiners/co-
"ordinators/scrutinisers/head examiners,"
exempted from disclosure under Section
8(1)(g) of the RTI Act. Those portions of the
answer books which contain information
regarding the examiners/co-
ordinators/scrutinisers/head examiners or
which may disclose their identity with
"reference to signature or initials, shall have"
"to be removed, covered, or otherwise"
severed from the non-exempted part of the
"answer books, under Section 10 of the RTI"
Act.”
30. The above reasoning of the Bench squarely applies to the
present case as well. The disclosure of names and addresses of
the members of the Interview Board would ex facie endanger
their lives or physical safety. The possibility of a failed
28
Page 28
candidate attempting to take revenge from such persons
"cannot be ruled out. On the one hand, it is likely to expose the"
"members of the Interview Board to harm and, on the other,"
such disclosure would serve no fruitful much less any public
"purpose. Furthermore, the view of the High Court in the"
judgment under appeal that element of bias can be traced and
would be crystallized only if the names and addresses of the
examiners/interviewers are furnished is without any substance.
The element of bias can hardly be co-related with the disclosure
of the names and addresses of the interviewers. Bias is not a
ground which can be considered for or against a party making
an application to which exemption under Section 8 is pleaded
as a defence. We are unable to accept this reasoning of the
High Court. Suffice it to note that the reasoning of the High
Court is not in conformity with the principles stated by this
Court in the CBSE case (supra). The transparency that is
expected to be maintained in such process would not take
within its ambit the disclosure of the information called for
under query No.1 of the application. Transparency in such
cases is relatable to the process where selection is based on
collective wisdom and collective marking. Marks are required
29
Page 29
to be disclosed but disclosure of individual names would hardly
hold relevancy either to the concept of transparency or for
proper exercise of the right to information within the limitation
of the Act.
"31. For the reasons afore-stated, we accept the present"
"appeal, set aside the judgment of the High Court and hold that"
the Commission is not bound to disclose the information asked
for by the applicant under Query No.1 of the application.
………...….………….......................J.
(Swatanter Kumar)
…..…………...................................J.
(Sudhansu Jyoti
Mukhopadhaya)
"New Delhi,"
"December 13, 2012"
30
Page 30
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Specia l Leave Petition (Civil) No. 27734 of 2012
(@ CC 14781/2012)
Girish Ramchandra Deshpande .. Petitioner
Versus
Cen. Information Commr. & Ors. .. Respondents
O R D E R
1. Delay condoned.
"2. We are, in this case, concerned with the question whether"
the Central Information Commissioner (for short ‘the CIC’) acting
"under the Right to Information Act, 2005 (for short ‘the RTI Act’)"
Page 1
2
was right in denying information regarding the third respondent’s
personal matters pertaining to his service career and also denying
"the details of his assets and liabilities, movable and immovable"
properties on the ground that the information sought for was
qualified to be personal information as defined in clause (j) of
Section 8(1) of the RTI Act.
3. The petitioner herein had submitted an application on
27.8.2008 before the Regional Provident Fund Commissioner
"(Ministry of Labour, Government of India) calling for various"
"details relating to third respondent, who was employed as an"
"Enforcement Officer in Sub-Regional Office, Akola, now working in"
the State of Madhya Pradesh. As many as 15 queries were made
"to which the Regional Provident Fund Commissioner, Nagpur gave"
the following reply on 15.9.2008:
”As to Point No.1: Copy of appointment order of Shri
"A.B. Lute, is in 3 pages. You have"
sought the details of salary in
"respect of Shri A.B. Lute, which"
Page 2
3
relates to personal information the
disclosures of which has no
relationship to any public activity
"or interest, it would cause"
unwarranted invasion of the
privacy of individual hence denied
as per the RTI provision under
Section 8(1)(j) of the Act.
As to Point No.2: Copy of order of granting
Enforcement Officer Promotion to
"Shri A.B. Lute, is in 3 Number."
Details of salary to the post along
with statutory and other
deductions of Mr. Lute is denied to
provide as per RTI provisions
under Section 8(1)(j) for the
reasons mentioned above.
As to Point NO.3: All the transfer orders of Shri A.B.
"Lute, are in 13 Numbers. Salary"
details is rejected as per the
provision under Section 8(1)(j) for
the reason mentioned above.
"As to Point No.4: The copies of memo, show cause"
"notice, censure issued to Mr. Lute,"
are not being provided on the
ground that it would cause
unwarranted invasion of the
privacy of the individual and has no
relationship to any public activity
or interest. Please see RTI
provision under Section 8(1)(j).
Page 3
4
As to Point No.5: Copy of EPF (Staff & Conditions)
Rules 1962 is in 60 pages.
As to Point No.6: Copy of return of assets and
liabilities in respect of Mr. Lute
cannot be provided as per the
provision of RTI Act under Section
8(1)(j) as per the reason explained
above at point No.1.
As to Point No.7: Details of investment and other
related details are rejected as per
the provision of RTI Act under
Section 8(1)(j) as per the reason
explained above at point No.1.
As to Point No.8: Copy of report of item wise and
value wise details of gifts accepted
"by Mr. Lute, is rejected as per the"
provisions of RTI Act under Section
8(1)(j) as per the reason explained
above at point No.1.
"As to Point No.9: Copy of details of movable,"
"immovable properties of Mr. Lute,"
the request to provide the same is
rejected as per the RTI Provisions
under Section 8(1)(j).
As to Point No.10: Mr. Lute is not claiming for TA/DA
for attending the criminal case
"pending at JMFC, Akola."
As to Point No.11: Copy of Notification is in 2
numbers.
Page 4
5
As to Point No.12: Copy of certified true copy of
charge sheet issued to Mr. Lute –
The matter pertains with head
"Office, Mumbai. Your application is"
"being forwarded to Head Office,"
Mumbai as per Section 6(3) of the
"RTI Act, 2005."
As to Point No.13: Certified True copy of complete
enquiry proceedings initiated
against Mr. Lute – It would cause
unwarranted invasion of privacy of
individuals and has no relationship
to any public activity or interest.
Please see RTI provisions under
Section 8(1)(j).
As to Point No.14: It would cause unwarranted
invasion of privacy of individuals
and has no relationship to any
"public activity or interest, hence"
denied to provide.
As to Point No.15: Certified true copy of second show
cause notice – It would cause
unwarranted invasion of privacy of
individuals and has no relationship
"to any public activity or interest,"
hence denied to provide.”
Page 5
6
"4. Aggrieved by the said order, the petitioner approached the"
"CIC. The CIC passed the order on 18.6.2009, the operative"
portion of the order reads as under:
“The question for consideration is whether the aforesaid
information sought by the Appellant can be treated as
‘personal information’ as defined in clause (j) of Section
8(1) of the RTI Act. It may be pertinent to mention
that this issue came up before the Full Bench of the
Commission in Appeal No.CIC/AT/A/2008/000628
(Milap Choraria v. Central Board of Direct Taxes)
and the Commission vide its decision dated 15.6.2009
held that “the Income Tax return have been rightly
held to be personal information exempted from
disclosure under clause (j) of Section 8(1) of the RTI
"Act by the CPIO and the Appellate Authority, and the"
appellant herein has not been able to establish that a
larger public interest would be served by disclosure of
this information. This logic would hold good as far as
the ITRs of Shri Lute are concerned. I would like to
further observe that the information which has been
denied to the appellant essentially falls in two parts –
(i) relating to the personal matters pertaining to his
"services career; and (ii) Shri Lute’s assets & liabilities,"
movable and immovable properties and other financial
aspects. I have no hesitation in holding that this
information also qualifies to be the ‘personal
information’ as defined in clause (j) of Section 8(1) of
the RTI Act and the appellant has not been able to
convince the Commission that disclosure thereof is in
larger public interest.”
Page 6
7
"5. The CIC, after holding so directed the second respondent to"
"disclose the information at paragraphs 1, 2, 3 (only posting"
"details), 5, 10, 11, 12,13 (only copies of the posting orders) to"
the appellant within a period of four weeks from the date of the
"order. Further, it was held that the information sought for with"
regard to the other queries did not qualify for disclosure.
"6. Aggrieved by the said order, the petitioner filed a writ"
petition No.4221 of 2009 which came up for hearing before a
learned Single Judge and the court dismissed the same vide order
dated 16.2.2010. The matter was taken up by way of Letters
Patent Appeal No.358 of 2011 before the Division Bench and the
same was dismissed vide order dated 21.12.2011. Against the
said order this special leave petition has been filed.
"7. Shri A.P. Wachasunder, learned counsel appearing for the"
petitioner submitted that the documents sought for vide Sl.
"Nos.1, 2 and 3 were pertaining to appointment and promotion"
Page 7
8
and Sl. No.4 and 12 to 15 were related to disciplinary action and
documents at Sl. Nos.6 to 9 pertained to assets and liabilities and
gifts received by the third respondent and the disclosure of those
"details, according to the learned counsel, would not cause"
unwarranted invasion of privacy.
8. Learned counsel also submitted that the privacy appended
to Section 8(1)(j) of the RTI Act widens the scope of documents
warranting disclosure and if those provisions are properly
"interpreted, it could not be said that documents pertaining to"
employment of a person holding the post of enforcement officer
could be treated as documents having no relationship to any
public activity or interest.
9. Learned counsel also pointed out that in view of Section 6(2)
"of the RTI Act, the applicant making request for information is not"
obliged to give any reason for the requisition and the CIC was not
justified in dismissing his appeal.
Page 8
9
10. This Court in Central Board of Secondary Education and
another v. Aditya Bandopadhyay and others (2011) 8 SCC
497 while dealing with the right of examinees to inspect
evaluated answer books in connection with the examination
conducted by the CBSE Board had an occasion to consider in
detail the aims and object of the RTI Act as well as the reasons
"for the introduction of the exemption clause in the RTI Act,"
"hence, it is unnecessary, for the purpose of this case to further"
examine the meaning and contents of Section 8 as a whole.
"11. We are, however, in this case primarily concerned with the"
"scope and interpretation to clauses (e), (g) and (j) of Section"
8(1) of the RTI Act which are extracted herein below:
“8. Exemption from disclosure of information.- (1)
"Notwithstanding anything contained in this Act, there"
"shall be no obligation to give any citizen,-"
(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;
Page 9
10
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or
identify the source of information or assistance given in
confidence for law enforcement or security purposes;
(j) information which relates to personal information
the disclosure of which has no relationship to any public
"activity or interest, or which would cause unwarranted"
invasion of the privacy of the individual unless the
Central Public Information Officer or the State Public
"Information Officer or the appellate authority, as the"
"case may be, is satisfied that the larger public interest"
justifies the disclosure of such information.”
"12. The petitioner herein sought for copies of all memos, show"
cause notices and censure/punishment awarded to the third
respondent from his employer and also details viz. movable and
"immovable properties and also the details of his investments,"
lending and borrowing from Banks and other financial institutions.
"Further, he has also sought for the details of gifts stated to have"
"accepted by the third respondent, his family members and friends"
and relatives at the marriage of his son. The information mostly
sought for finds a place in the income tax returns of the third
respondent. The question that has come up for consideration is
Page 10
11
whether the above-mentioned information sought for qualifies to
be “personal information” as defined in clause (j) of Section 8(1)
of the RTI Act.
13. We are in agreement with the CIC and the courts below that
the details called for by the petitioner i.e. copies of all memos
"issued to the third respondent, show cause notices and orders of"
censure/punishment etc. are qualified to be personal information
as defined in clause (j) of Section 8(1) of the RTI Act. The
performance of an employee/officer in an organization is primarily
a matter between the employee and the employer and normally
those aspects are governed by the service rules which fall under
"the expression “personal information”, the disclosure of which has"
no relationship to any public activity or public interest. On the
"other hand, the disclosure of which would cause unwarranted"
"invasion of privacy of that individual. Of course, in a given case,"
if the Central Public Information Officer or the State Public
Information Officer of the Appellate Authority is satisfied that the
Page 11
12
"larger public interest justifies the disclosure of such information,"
appropriate orders could be passed but the petitioner cannot
claim those details as a matter of right.
14. The details disclosed by a person in his income tax returns
are “personal information” which stand exempted from disclosure
"under clause (j) of Section 8(1) of the RTI Act, unless involves a"
larger public interest and the Central Public Information Officer or
the State Public Information Officer or the Appellate Authority is
satisfied that the larger public interest justifies the disclosure of
such information.
15. The petitioner in the instant case has not made a bona fide
"public interest in seeking information, the disclosure of such"
information would cause unwarranted invasion of privacy of the
individual under Section 8(1)(j) of the RTI Act.
"16. We are, therefore, of the view that the petitioner has not"
succeeded in establishing that the information sought for is for
Page 12
13
"the larger public interest. That being the fact, we are not inclined"
"to entertain this special leave petition. Hence, the same is"
dismissed.
……………….……………………..J.
(K. S. RADHAKRISHNAN)
………………………………….…..J.
(DIPAK MISRA)
New Delhi
"October 3, 2012"
Page 13
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9052 OF 2012
(Arising out of SLP (C) No.20217 of 2011)
Bihar Public Service Commission ...
Appellant
Versus
Saiyed Hussain Abbas Rizwi & Anr. ...
Respondents
J U D G M E N T
"Swatanter Kumar, J."
1. Leave granted.
"2. The Bihar Public Service Commission (for short, ‘the"
Commission) published advertisement No.6 of 2000 dated 10th
"May, 2000 in the local papers of the State of Bihar declaring its"
intention to fill up the posts of ‘State Examiner of Questioned
"Documents’, in Police Laboratory in Crime Investigation"
"Department, Government of Bihar, Patna. The advertisement,"
Page 1
"inter alia, stated that written examination would be held if"
adequate number of applications were received. As very
"limited number of applications were received, the Commission,"
"in terms of the advertisement, decided against the holding of"
written examination. It exercised the option to select the
candidates for appointment to the said post on the basis of viva
voce test alone. The Commission completed the process of
selection and recommended the panel of selected candidates
to the State of Bihar.
"3. One Saiyed Hussain Abbas Rizwi, respondent No.1 herein,"
"claiming to be a public spirited citizen, filed an application"
before the Commission (appellant herein) under the Right to
"Information Act, 2005 (for short “the Act”) on 16th December,"
2008 seeking information in relation to eight queries. These
queries concerned the interview which was held on 30th
"September, 2002 and 1st October, 2002 by the Commission"
"with regard to the above advertisement. These queries, inter"
"alia, related to providing the names, designation and addresses"
"of the subject experts present in the Interview Board, names"
"and addresses of the candidates who appeared, the interview"
statement with certified photocopies of the marks of all the
2
Page 2
"candidates, criteria for selection of the candidates, tabulated"
statement containing average marks allotted to the candidates
from matriculation to M.Sc. during the selection process with
the signatures of the members/officers and certified copy of the
merit list. This application remained pending with the Public
Information Officer of the Commission for a considerable time
that led to filing of an appeal by respondent No.1 before the
State Information Commission. When the appeal came up for
"hearing, the State Information Commission vide its order dated"
"30th April, 2009 had directed the Public Information Officer-cum-"
Officer on Special Duty of the Commission that the information
sought for be made available and the case was fixed for 27th
"August, 2009 when the following order was passed :"
“The applicant is present. A letter dated
12.08.2009 of the Public Information
"Officer, Bihar Public Service Commission,"
Patna has been received whereby the
required paragraph-wise information which
"could be supplied, has been given to the"
applicant. Since the information which
could be supplied has been given to the
"applicant, the proceedings of the case are"
closed.”
"4. At this stage, we may also notice that the Commission,"
"vide its letter dated 12th August, 2009, had furnished the"
3
Page 3
information nearly to all the queries of respondent No.1. It also
stated that no written test had been conducted and that the
"name, designation and addresses of the members of the"
Interview Board could not be furnished as they were not
required to be supplied in accordance with the provisions of
Section 8(1)(g) of the Act.
5. Aggrieved from the said order of the Information
"Commission dated 27th August, 2009, respondent No.1"
challenged the same by filing a writ before the High Court of
Judicature at Patna. The matter came up for hearing before a
"learned Judge of that Court, who, vide judgment dated 27th"
"November, 2009 made the following observations and"
dismissed the writ petition :
“If information with regard to them is
"disclosed, the secrecy and the authenticity"
of the process itself may be jeopardized
apart from that information would be an
unwarranted invasion into privacy of the
individual. Restricting giving this
information has a larger public purpose
behind it. It is to maintain purity of the
"process of selection. Thus, in view of"
"specific provision in Section 8(1)(j), in my"
"view, the information could not be"
demanded as matter of right. The
designated authority in that organization
also did not consider it right to divulge the
4
Page 4
"information in larger public interest, as"
provided in the said provision.”
"6. Feeling aggrieved, respondent No.1 challenged the"
judgment of the learned Single Judge before the Division Bench
of that Court by filing a letters patent appeal being LPA No.102
"of 2010. The Division Bench, amongst others, noticed the"
following contentions :
(i) that third party interest was involved in providing the
"information asked for and, therefore, could properly be"
denied in terms of Section 2(n) read with Sections 8(1)(j)
and 11 of the Act.
(ii) that respondent No.1 (the applicant) was a mere
busybody and not a candidate himself and was attempting
to meddle with the affairs of the Commission needlessly.
7. The Division Bench took the view that the provisions of
Section 8(1)(j) were not attracted in the facts of the case in
hand inasmuch as this provision had application in respect of
law enforcement agency and for security purposes. Since no
such consideration arose with respect to the affairs of the
"Commission and its function was in public domain, reliance on"
5
Page 5
the said provision for denying the information sought for was
"not tenable in law. Thus, the Court in its order dated 20th"
"January, 2011 accepted the appeal, set aside the order of the"
learned Single Judge and directed the Commission to
communicate the information sought for to respondent No.1.
The Court directed the Commission to provide the names of the
"members of the Interview Board, while denying the disclosure"
of and providing photocopies of the papers containing the
signatures and addresses of the members of the Interview
Board.
8. The Commission challenging the legality and correctness
of the said judgment has filed the present appeal by way of
special leave.
9. The question that arises for consideration in the present
case is as to whether the Commission was duty bound to
disclose the names of the members of the Interview Board to
"any person including the examinee. Further, when the"
Commission could take up the plea of exemption from
disclosure of information as contemplated under Section 8 of
the Act in this regard.
6
Page 6
"10. Firstly, we must examine the purpose and scheme of this"
"Act. For this purpose, suffice would it be to refer to the"
judgment of this Court in the case of Namit Sharma v. Union of
"India [2012 (8) SCALE 593], wherein this Court has held as"
under :
“27. In terms of the Statement of Objects
"and Reasons of the Act of 2002, it was"
stated that this law was enacted in order to
make the government more transparent
and accountable to the public. It was felt
"that in the present democratic framework,"
free flow of information for citizens and
non-Government institutions suffers from
several bottlenecks including the existing
"legal framework, lack of infrastructure at"
the grass root level and an attitude of
secrecy within the Civil Services as a result
of the old framework of rules. The Act was
to deal with all such aspects. The purpose
and object was to make the government
more transparent and accountable to the
public and to provide freedom to every
citizen to secure access to information
"under the control of public authorities,"
"consistent with public interest, in order to"
"promote openness, transparency and"
accountability in administration and in
relation to matters connected therewith or
incidental thereto.”
11. The scheme of the Act contemplates for setting out the
practical regime of right to information for citizens to secure
"access to information under the control of public authorities, in"
7
Page 7
order to promote transparency and accountability in the
working of every public authority. It was aimed at providing
free access to information with the object of making
governance more transparent and accountable. Another right
of a citizen protected under the Constitution is the right to
privacy. This right is enshrined within the spirit of Article 21 of
"the Constitution. Thus, the right to information has to be"
balanced with the right to privacy within the framework of law.
12. Where Section 3 of the Act grants right to citizens to have
"access to information, there Section 4 places an obligation upon"
the public authorities to maintain records and provide the
prescribed information. Once an application seeking
"information is made, the same has to be dealt with as per"
Sections 6 and 7 of the Act. The request for information is to be
disposed of within the time postulated under the provisions of
Section 7 of the Act. Section 8 is one of the most important
provisions of the Act as it is an exception to the general rule of
obligation to furnish information. It gives the category of cases
where the public authority is exempted from providing the
"information. To such exemptions, there are inbuilt exceptions"
"under some of the provisions, where despite exemption, the"
8
Page 8
Commission may call upon the authority to furnish the
information in the larger public interest. This shows the wide
scope of these provisions as intended by the framers of law. In
"such cases, the Information Commission has to apply its mind"
whether it is a case of exemption within the provisions of the
said section.
13. Right to information is a basic and celebrated
fundamental/basic right but is not uncontrolled. It has its
"limitations. The right is subject to a dual check. Firstly, this"
right is subject to the restrictions inbuilt within the Act and
secondly the constitutional limitations emerging from Article 21
"of the Constitution. Thus, wherever in response to an"
"application for disclosure of information, the public authority"
"takes shelter under the provisions relating to exemption, non-"
"applicability or infringement of Article 21 of the Constitution,"
the State Information Commission has to apply its mind and
form an opinion objectively if the exemption claimed for was
sustainable on facts of the case.
"14. Now, we have to examine whether the Commission is a"
public authority within the meaning of the Act. The expression
‘public authority’ has been given an exhaustive definition under
9
Page 9
section 2(h) of the Act as the Legislature has used the word
"‘means’ which is an expression of wide connotation. Thus,"
‘public authority’ is defined as any authority or body or
"institution of the Government, established or constituted by the"
Government which falls in any of the stated categories under
"Section 2(h) of the Act. In terms of Section 2(h)(a), a body or"
an institution which is established or constituted by or under
the Constitution would be a public authority. Public Service
Commission is established under Article 315 of the Constitution
of India and as such there cannot be any escape from the
conclusion that the Commission shall be a public authority
within the scope of this section.
15. Section 2(f) again is exhaustive in nature. The Legislature
has given meaning to the expression ‘information’ and has
stated that it shall mean any material in any form including
"papers, samples, data material held in electronic form, etc."
Right to information under Section 2(j) means the ‘right to
information’ accessible under this Act which is held by or under
the control of any public authority and includes the right to
"inspection of work, documents, records, taking notes, extracts,"
"taking certified sample of materials, obtaining information in"
10
Page 10
"the form of diskettes, floppies and video cassettes, etc. The"
right sought to be exercised and information asked for should
fall within the scope of ‘information’ and ‘right to information’
as defined under the Act.
"16. Thus, what has to be seen is whether the information"
sought for in exercise of right to information is one that is
permissible within the framework of law as prescribed under the
Act. If the information called for falls in any of the categories
specified under Section 8 or relates to the organizations to
which the Act itself does not apply in terms of section 24 of the
"Act, the public authority can take such stand before the"
commission and decline to furnish such information. Another
aspect of exercise of this right is that where the information
"asked for relates to third party information, the Commission is"
required to follow the procedure prescribed under Section 11 of
the Act.
"17. Before the High Court, reliance had been placed upon"
"Section 8(1)(j) and Section 11 of the Act. On facts, the"
controversy in the present case falls within a very narrow
compass. Most of the details asked for by the applicant have
already been furnished. The dispute between the parties
11
Page 11
"related only to the first query of the applicant, that is, with"
regard to disclosure of the names and addresses of the
members of the Interview Board.
"18. On behalf of the Commission, reliance was placed upon"
Section 8(1)(j) and Section 11 of the Act to contend that
disclosure of the names would endanger the life of the
members of the interview board and such disclosure would also
cause unwarranted invasion of the privacy of the interviewers.
"Further, it was contended that this information related to third"
party interest. The expression ‘third party’ has been defined in
Section 2(n) of the Act to mean a person other than the citizen
making a request for information and includes a public
"authority. For these reasons, they were entitled to the"
exemption contemplated under Section 8(1)(j) and were not
liable to disclose the required information. It is also contended
on behalf of the Commission that the Commission was entitled
to exemption under Sections 8(1)(e) and 8(1)(g) read together.
"19. On the contrary, the submission on behalf of the applicant"
was that it is an information which the applicant is entitled to
receive. The Commission was not entitled to any exemption
12
Page 12
"under any of the provisions of Section 8, and therefore, was"
obliged to disclose the said information to the applicant.
"20. In the present case, we are not concerned with the"
correctness or otherwise of the method adopted for selection of
"the candidates. Thus, the fact that no written examination was"
held and the selections were made purely on the basis of viva
"voce, one of the options given in the advertisement itself, does"
not arise for our consideration. We have to deal only with the
plea as to whether the information asked for by the applicant
should be directed to be disclosed by the Commission or
whether the Commission is entitled to the exemption under the
stated provisions of Section 8 of the Act.
21. Section 8 opens with the non obstante language and is an
exception to the furnishing of information as is required under
the relevant provisions of the Act. During the course of the
"hearing, it was not pressed before us that the Commission is"
entitled to the exemption in terms of Section 8(1)(j) of the Act.
"In view of this, we do not propose to discuss this issue any"
further nor would we deal with the correctness or otherwise of
the impugned judgment of the High Court in that behalf.
13
Page 13
22. Section 8(1)(e) provides an exemption from furnishing of
"information, if the information available to a person is in his"
fiduciary relationship unless the competent authority is
satisfied that larger public interest warrants the disclosure of
"such information. In terms of Section 8(1)(g), the public"
authority is not obliged to furnish any such information the
disclosure of which would endanger the life or physical safety of
any person or identify the source of information or assistance
given in confidence for law enforcement and security purposes.
If the concerned public authority holds the information in
"fiduciary relationship, then the obligation to furnish information"
is obliterated. But if the competent authority is still satisfied
"that in the larger public interest, despite such objection, the"
"information should be furnished, it may so direct the public"
authority. The term ‘fiduciary’ refers to a person having a duty
"to act for the benefit of another, showing good faith and"
"condour, where such other person reposes trust and special"
confidence in the person owing or discharging the duty. The
term ‘fiduciary relationship’ is used to describe a situation or
transaction where one person places complete confidence in
"another person in regard to his affairs, business or transactions."
14
Page 14
This aspect has been discussed in some detail in the judgment
of this Court in the case of Central Board of Secondary
"Education (supra). Section 8(1)(e), therefore, carves out a"
protection in favour of a person who possesses information in
his fiduciary relationship. This protection can be negated by
the competent authority where larger public interest warrants
"the disclosure of such information, in which case, the authority"
is expected to record reasons for its satisfaction. Another very
significant provision of the Act is 8(1)(j). In terms of this
"provision, information which relates to personal information,"
the disclosure of which has no relationship to any public activity
or interest or which would cause unwarranted invasion of the
privacy of the individual would fall within the exempted
"category, unless the authority concerned is satisfied that larger"
"public interest justifies the disclosure of such information. It is,"
"therefore, to be understood clearly that it is a statutory"
exemption which must operate as a rule and only in
"exceptional cases would disclosure be permitted, that too, for"
reasons to be recorded demonstrating satisfaction to the test of
larger public interest. It will not be in consonance with the
"spirit of these provisions, if in a mechanical manner, directions"
15
Page 15
are passed by the appropriate authority to disclose information
which may be protected in terms of the above provisions. All
information which has come to the notice of or on record of a
person holding fiduciary relationship with another and but for
"such capacity, such information would not have been provided"
"to that authority, would normally need to be protected and"
would not be open to disclosure keeping the higher standards
of integrity and confidentiality of such relationship. Such
exemption would be available to such authority or department.
23. The expression ‘public interest’ has to be understood in its
true connotation so as to give complete meaning to the
relevant provisions of the Act. The expression ‘public interest’
must be viewed in its strict sense with all its exceptions so as to
justify denial of a statutory exemption in terms of the Act. In its
"common parlance, the expression ‘public interest’, like ‘public"
"purpose’, is not capable of any precise definition . It does not"
"have a rigid meaning, is elastic and takes its colour from the"
"statute in which it occurs, the concept varying with time and"
state of society and its needs. [State of Bihar v. Kameshwar
Singh (AIR 1952 SC 252)]. It also means the general welfare of
the public that warrants recommendation and protection;
16
Page 16
something in which the public as a whole has a stake [Black’s
Law Dictionary (Eighth Edition)].
24. The satisfaction has to be arrived at by the authorities
objectively and the consequences of such disclosure have to be
weighed with regard to circumstances of a given case. The
decision has to be based on objective satisfaction recorded for
ensuring that larger public interest outweighs unwarranted
invasion of privacy or other factors stated in the provision.
"Certain matters, particularly in relation to appointment, are"
required to be dealt with great confidentiality. The information
may come to knowledge of the authority as a result of
disclosure by others who give that information in confidence
"and with complete faith, integrity and fidelity. Secrecy of such"
"information shall be maintained, thus, bringing it within the"
"ambit of fiduciary capacity. Similarly, there may be cases"
where the disclosure has no relationship to any public activity
or interest or it may even cause unwarranted invasion of
privacy of the individual. All these protections have to be given
their due implementation as they spring from statutory
exemptions. It is not a decision simpliciter between private
interest and public interest. It is a matter where a
17
Page 17
constitutional protection is available to a person with regard to
"the right to privacy. Thus, the public interest has to be"
construed while keeping in mind the balance factor between
right to privacy and right to information with the purpose
sought to be achieved and the purpose that would be served in
"the larger public interest, particularly when both these rights"
emerge from the constitutional values under the Constitution of
India.
"25. First of all, the Court has to decide whether in the facts of"
"the present case, the Commission holds any fiduciary"
relationship with the examinee or the interviewers. Discussion
on this question need not detain us any further as it stands fully
answered by a judgment of this Court in the case of Central
Board of Secondary Education & Anr. v. Aditya Bandopadhyay
& Ors. [(2011) 8 SCC 497] wherein the Court held as under :
“40. 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-à-vis another partner and an
employer vis-à-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.
18
Page 18
"Similarly, if on the request of the employer"
or official superior or the head of a
"department, an employee furnishes his"
"personal details and information, to be"
"retained in confidence, the employer, the"
official superior or departmental head is
expected to hold such personal information
"in confidence as a fiduciary, to be made"
use of or disclosed only if the employee’s
conduct or acts are found to be prejudicial
to the employer.
"41. In a philosophical and very wide sense,"
examining bodies can be said to act in a
"fiduciary capacity, with reference to the"
"students who participate in an examination,"
as a Government does while governing its
citizens or as the present generation does
with reference to the future generation
while preserving the environment. But the
words “information available to a person in
his fiduciary relationship” are used in
Section 8(1)(e) of the RTI Act in its normal
"and well-recognised sense, that is, to refer"
"to persons who act in a fiduciary capacity,"
with reference to a specific beneficiary or
beneficiaries who are to be expected to be
protected or benefited by the actions of the
fiduciary—a trustee with reference to the
"beneficiary of the trust, a guardian with"
reference to a minor/physically infirm/
"mentally challenged, a parent with"
"reference to a child, a lawyer or a chartered"
"accountant with reference to a client, a"
"doctor or nurse with reference to a patient,"
"an agent with reference to a principal, a"
"partner with reference to another partner, a"
Director of a company with reference to a
"shareholder, 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"
19
Page 19
reference to business dealings/transaction
of the employer. We 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.
42. The duty of examining bodies is to
subject the candidates who have completed
a course of study or a period of training in
"accordance with its curricula, to a process"
of verification/examination/testing of their
"knowledge, ability or skill, or to ascertain"
whether they can be said to have
successfully completed or passed the
course of study or training. Other
specialised examining bodies may simply
subject the candidates to a process of
"verification by an examination, to find out"
whether such person is suitable for a
"particular post, job or assignment. An"
"examining body, if it is a public authority"
"entrusted with public functions, is required"
"to act fairly, reasonably, uniformly and"
consistently for public good and in public
interest.
43. This Court has explained the role of an
examining body in regard to the process of
holding examination in the context of
examining whether it amounts to “service”
"to a consumer, in Bihar School Examination"
Board v. Suresh Prasad Sinha in the
"following manner: (SCC p. 487, paras 11-"
13)
“11. … 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
20
Page 20
this function as partly statutory and
partly administrative.
12. When the Examination Board
conducts an examination in discharge
"of its statutory function, it does not"
offer its ‘services’ to any candidate.
Nor does a student who participates in
the examination conducted by the
"Board, hire or avail of any service from"
the Board for a consideration. On the
"other hand, a candidate who"
participates in the examination
"conducted by the Board, is a person"
who has undergone a course of study
and who requests the Board to test
him as to whether he has imbibed
sufficient knowledge to be fit to be
declared as having successfully
completed the said course of
"education; and if so, determine his"
position or rank or competence vis-à-
vis other examinees. The process is
"not, therefore, availment of a service"
"by a student, but participation in a"
general examination conducted by the
Board to ascertain whether he is
eligible and fit to be considered as
having successfully completed the
secondary education course. The
examination fee paid by the student is
not the consideration for availment of
"any service, but the charge paid for"
the privilege of participation in the
examination.
13. … The fact that in the course
"of conduct of the examination, or"
"evaluation of answer scripts, or"
furnishing of marksheets or
"certificates, there may be some"
"negligence, omission or deficiency,"
does not convert the Board into a
21
Page 21
"service provider for a consideration,"
nor convert the examinee into a
consumer….”
It cannot therefore be said that the
examining body is in a fiduciary
relationship either with reference to the
examinee who participates in the
examination and whose answer books are
evaluated by the examining body.
XXX XXX XXX
49. The examining body entrusts the
answer books to an examiner for evaluation
and pays the examiner for his expert
service. The work of evaluation and
marking the answer book is an assignment
given by the examining body to the
examiner which he discharges for a
"consideration. Sometimes, an examiner"
"may assess answer books, in the course of"
"his employment, as a part of his duties"
without any specific or special
"remuneration. In other words, the"
examining body is the “principal” and the
examiner is the “agent” entrusted with the
"work, that is, the evaluation of answer"
"books. Therefore, the examining body is not"
in the position of a fiduciary with reference
to the examiner.”
(emphasis supplied)
"26. We, with respect, would follow the above reasoning of the"
"Bench and, thus, would have no hesitation in holding that in the"
"present case, the examining body (the Commission), is in no"
fiduciary relationship with the examinee (interviewers) or the
candidate interviewed. Once the fiduciary relationship is not
22
Page 22
"established, the obvious consequence is that the Commission"
cannot claim exemption as contemplated under Section 8(1)(e)
of the Act. The question of directing disclosure for a larger
"public interest, therefore, would not arise at all."
"27. In CBSE case (supra), this Court had clearly stated the"
view that an examiner who examines the answer sheets holds
the relationship of principal and agent with the examining body.
"Applying the same principle, it has to be held that the"
interviewers hold the position of an ‘agent’ vis-a-vis the
examining body which is the ‘principal’. This relationship per se
is not relatable to any of the exemption clauses but there are
"some clauses of exemption, the foundation of which is not a"
particular relationship like fiduciary relationship. Clause 8(1)(g)
can come into play with any kind of relationship. It requires
that where the disclosure of information would endanger the life
or physical safety of any person or identify the source of
information or assistance given in confidence for law
"enforcement or security purposes, the information need not be"
provided. The High Court has rejected the application of
Section 8(1)(g) on the ground that it applies only with regard to
law enforcement or security purposes and does not have
23
Page 23
general application. This reasoning of the High Court is
contrary to the very language of Section 8(1)(g). Section 8(1)
(g) has various clauses in itself.
"28. Now, let us examine the provisions of Section 8(1)(g) with"
greater emphasis on the expressions that are relevant to the
present case. This section concerns with the cases where no
obligation is cast upon the public authority to furnish
"information, the disclosure of which would endanger (a) the life"
"(b) physical safety of any person. The legislature, in its wisdom,"
has used two distinct expressions. They cannot be read or
construed as being synonymous. Every expression used by the
"Legislature must be given its intended meaning and, in fact, a"
purposeful interpretation. The expression ‘life’ has to be
construed liberally. ‘Physical safety’ is a restricted term while
life is a term of wide connotation. ‘Life’ includes reputation of
an individual as well as the right to live with freedom. The
expression ‘ life’ also appears in Article 21 of the Constitution
and has been provided a wide meaning so as to inter alia
"include within its ambit the right to live with dignity, right to"
"shelter, right to basic needs and even the right to reputation."
"The expression life under section 8(1(g) the Act, thus, has to be"
24
Page 24
understood in somewhat similar dimensions. The term
‘endanger’ or ‘endangerment’ means the act or an instance of
putting someone or something in danger; exposure to peril or
such situation which would hurt the concept of life as
understood in its wider sense [refer Black’s Law Dictionary
"(Eighth Edition)]. Of course, physical safety would mean the"
likelihood of assault to physical existence of a person. If in the
opinion of the concerned authority there is danger to life or
"possibility of danger to physical safety, the State Information"
Commission would be entitled to bring such case within the
exemption of Section 8(1)(g) of the Act. The disclosure of
information which would endanger the life or physical safety of
any person is one category and identification of the source of
information or assistance given in confidence for law
enforcement or security purposes is another category. The
expression ‘for law enforcement or security purposes’ is to be
read ejusdem generis only to the expression ‘assistance given
in confidence’ and not to any other clause of the section. On
"the plain reading of Section 8(1)(g), it becomes clear that the"
said clause is complete in itself. It cannot be said to have any
reference to the expression ‘assistance given in confidence for
25
Page 25
law enforcement or security purposes’. Neither the language of
the Section nor the object of the Section requires such
interpretation. It would not further the cause of this section.
Section 8 attempts to provide exemptions and once the
language of the Section is unambiguous and squarely deals
"with every situation, there is no occasion for the Court to"
frustrate the very object of the Section. It will amount to
misconstruing the provisions of the Act. The High Court though
"has referred to Section 8(1)(j) but has, in fact, dealt with the"
"language of Section 8(1)(g). The reasoning of the High Court,"
"therefore, is neither clear in reference to provision of the"
Section nor in terms of the language thereof.
"29. Now, the ancillary question that arises is as to the"
consequences that the interviewers or the members of the
interview board would be exposed to in the event their names
and addresses or individual marks given by them are directed
"to be disclosed. Firstly, the members of the Board are likely to"
be exposed to danger to their lives or physical safety.
"Secondly, it will hamper effective performance and discharge of"
their duties as examiners. This is the information available with
the examining body in confidence with the interviewers.
26
Page 26
Declaration of collective marks to the candidate is one thing
"and that, in fact, has been permitted by the authorities as well"
as the High Court. We see no error of jurisdiction or reasoning
in this regard. But direction to furnish the names and
addresses of the interviewers would certainly be opposed to the
very spirit of Section 8(1)(g) of the Act. CBSE case (supra) has
"given sufficient reasoning in this regard and at this stage, we"
may refer to paragraphs 52 and 53 of the said judgment which
read as under :
“52. When an examining body engages the
services of an examiner to evaluate the
"answer books, the examining body expects"
the examiner not to disclose the
information regarding evaluation to anyone
other than the examining body. Similarly
the examiner also expects that his name
and particulars would not be disclosed to
the candidates whose answer books are
evaluated by him. In the event of such
"information being made known, a"
disgruntled examinee who is not satisfied
"with the evaluation of the answer books,"
may act to the prejudice of the examiner by
attempting to endanger his physical safety.
"Further, any apprehension on the part of"
the examiner that there may be danger to
"his physical safety, if his identity becomes"
"known to the examinees, may come in the"
way of effective discharge of his duties. The
"above applies not only to the examiner, but"
"also to the scrutiniser, co-ordinator and"
27
Page 27
head examiner who deal with the answer
book.
53. The answer book usually contains not
only the signature and code number of the
"examiner, but also the signatures and code"
number of the scrutiniser/co-ordinator/head
examiner. The information as to the names
or particulars of the examiners/co-
ordinators/scrutinisers/head examiners are
therefore exempted from disclosure under
"Section 8(1)(g) of the RTI Act, on the"
"ground that if such information is disclosed,"
it may endanger their physical safety.
"Therefore, if the examinees are to be given"
access to evaluated answer books either by
permitting inspection or by granting
"certified copies, such access will have to be"
given only to that part of the answer book
which does not contain any information or
signature of the examiners/co-
"ordinators/scrutinisers/head examiners,"
exempted from disclosure under Section
8(1)(g) of the RTI Act. Those portions of the
answer books which contain information
regarding the examiners/co-
ordinators/scrutinisers/head examiners or
which may disclose their identity with
"reference to signature or initials, shall have"
"to be removed, covered, or otherwise"
severed from the non-exempted part of the
"answer books, under Section 10 of the RTI"
Act.”
30. The above reasoning of the Bench squarely applies to the
present case as well. The disclosure of names and addresses of
the members of the Interview Board would ex facie endanger
their lives or physical safety. The possibility of a failed
28
Page 28
candidate attempting to take revenge from such persons
"cannot be ruled out. On the one hand, it is likely to expose the"
"members of the Interview Board to harm and, on the other,"
such disclosure would serve no fruitful much less any public
"purpose. Furthermore, the view of the High Court in the"
judgment under appeal that element of bias can be traced and
would be crystallized only if the names and addresses of the
examiners/interviewers are furnished is without any substance.
The element of bias can hardly be co-related with the disclosure
of the names and addresses of the interviewers. Bias is not a
ground which can be considered for or against a party making
an application to which exemption under Section 8 is pleaded
as a defence. We are unable to accept this reasoning of the
High Court. Suffice it to note that the reasoning of the High
Court is not in conformity with the principles stated by this
Court in the CBSE case (supra). The transparency that is
expected to be maintained in such process would not take
within its ambit the disclosure of the information called for
under query No.1 of the application. Transparency in such
cases is relatable to the process where selection is based on
collective wisdom and collective marking. Marks are required
29
Page 29
to be disclosed but disclosure of individual names would hardly
hold relevancy either to the concept of transparency or for
proper exercise of the right to information within the limitation
of the Act.
"31. For the reasons afore-stated, we accept the present"
"appeal, set aside the judgment of the High Court and hold that"
the Commission is not bound to disclose the information asked
for by the applicant under Query No.1 of the application.
………...….………….......................J.
(Swatanter Kumar)
…..…………...................................J.
(Sudhansu Jyoti
Mukhopadhaya)
"New Delhi,"
"December 13, 2012"
30
Page 30
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2013
(arising out of SLP(C)No.22609 of 2012)
R.K. JAIN …. APPELLANT
VERSUS
UNION OF INDIA & ANR. ` ….RESPONDENTS
J UD G M E N T
"SUDHANSU JYOTI MUKHOPADHAYA, J."
Leave granted.
"2. In this appeal, the appellant challenges the final"
"judgment and order dated 20th April, 2012 passed by the"
Delhi High Court in L.P.A. No. 22/2012. In the said
"order, the Division Bench dismissed the appeal against"
the order of the learned Single Judge dated 8th
"December, 2011, wherein the Single Judge held that “the"
information sought by the appellant herein is the third
party information wherein third party may plead a
privacy defence and the proper question would be as to
whether divulging of such an information is in the
"public interest or not.” Thus, the matter has been"
remitted back to Chief Information Commissioner to
1
Page 1
consider the issue after following the procedure under
Section 11 of the Right to Information Act.
3. The factual matrix of the case is as follows:
The appellant filed an application to Central
Public Information Officer (hereinafter referred to as
the ‘CPIO’) under Section 6 of the Right to Information
"Act, 2005 (hereinafter referred to as the ‘RTI Act’) on"
"7th October, 2009 seeking the copies of all note sheets"
and correspondence pages of file relating to one Ms.
"Jyoti Balasundram, Member/CESTAT. The Under Secretary,"
who is the CPIO denied the information by impugned
"letter dated 15th October, 2009 on the ground that the"
information sought attracts Clause 8(1)(j) of the RTI
"Act, which reads as follows:­"
“R­20011­68/2009 – ADIC – CESTAT
Government of India
Ministry of Finance
Department of Revenue
"New Delhi, the 15.10.09"
To
Shri R.K. Jain
"1512­B, Bhishm Pitamah Marg,"
"Wazir Nagar,"
New Delhi – 110003
Subject: Application under RTI Act.
"Sir,"
Your RTI application No.RTI/09/2406 dated
7.10.2009 seeks information from File No.27­
2
Page 2
3/2002 Ad­1­C. The file contains analysis of
Annual Confidential Report of Smt. Jyoti
Balasundaram only which attracts clause 8 (1)
(j) of RTI Act. Therefore the information
sought is denied.
"Yours faithfully,"
(Victor James)
Under Secretary to the Govt. of India”
"4. On an appeal under Section 19 of the RTI Act, the"
Director (Headquarters) and Appellate Authority by its
"order dated 18th December, 2009 disallowed the same"
citing same ground as cited by the CPIO; the relevant
portion of which reads as follows:
“2. I have gone through the RTI application
"dated 07.10.2009, wherein the Appellant had"
requested the following information;
(A)Copies of all note sheets and
correspondence pages of File No.
27/3/2002 – Ad. IC relating to Ms. Jyoti
Balasundaram.
"(B)Inspection of all records, documents,"
files and note sheets of File
No.27/3/2002 – Ad. IC.
(C)Copies of records pointed out during /
after inspection.
3. I have gone through the reply dated
"15.10.2009 of the Under Secretary, Ad. IC­"
CESTAT given to the Appellant stating that as
the file contained analysis of the Annual
"Confidential Report of Ms. Jyoti Balasundaram,"
furnishing of information is exempted under
Section 9 (1) (j) of the R.T.I. Act.
5. The provision of Section 8 (1) (j) of the
"RTI Act, 2005 under which the information has"
been denied by the CPIO is reproduced
hereunder:
3
Page 3
“Information which relates to personal
information the disclosure of which has no
relationship to any public activity or
"interest, or which would cause unwarranted"
invasion of the privacy of the individual
unless the Central Public Information Officer
or the State Public Information Officer or the
"appellate authority, as the case may be, is"
satisfied that the larger public interest
justifies the disclosure of such information……”
6. File No.27/3/2002­ Ad.1C deals with follow­
up action on the ACR for the year 2000­2001
"in respect of Ms. Jyoti Balasundaram,"
"Member (Judicial), CEGAT” (now CESTAT)."
The matter discussed therein is personal
and I am not inclined to accept the view of
the Appellant the since Ms. Jyoti
Balasundaram is holding the post of Member
"(Judicial), CESTAT, larger public interest"
"is involved, which therefore, ousts the"
exemption provided under Section 8 (1) (j).
"Moreover, Ms. Jyoti Balasundaram is still"
serving in the CESTAT and the ACR for the
year 2000­2001 is still live and relevant
insofar as her service is concerned.
"Therefore, it may not be proper to rush up"
to the conclusion that the matter is over
"and therefore, the information could have"
been given by the CPIO under Section 8(1)
(i). The file contains only 2 pages of
the notes and 5 pages of the
"correspondence, in which the ACR of the"
officer and the matter connected thereto
"have been discussed, which is exempt from"
disclosure under the aforesaid Section.
"The file contains no other information,"
which can be segregated and provided to the
Appellant.
"7. In view of the above, the appeal is"
disallowed.”
"5. Thereafter, the appellant preferred a second"
appeal before the Central Information Commission under
Section 19 (3) of the RTI Act which was also rejected
"on 22nd April, 2010 with the following observations:­"
4
Page 4
“4. Appellant’s plea is that since the
matter dealt in the above­mentioned file
related to the integrity of a public
"servant, the disclosure of the requested"
information should be authorized in public
interest.
5. It is not in doubt that the file
referred to by the appellant related
to the Annual Confidential Record of a
"third­party, Ms. Jyoti Balasundaram"
and was specific to substantiation by
the Reporting Officer of the comments
made in her ACRs about the third –
"party’s integrity. Therefore,"
appellant’s plea that the matter was
about a public servant’s integrity
per­se is not valid. The ACR examines
all aspects of the performance and the
personality of a public servant –
integrity being one of them. An
examination of the aspect of integrity
"as part of the CR cannot, therefore,"
be equated with the vigilance enquiry
against a public servant. Appellant
was in error in equating the two.
6. It has been the consistent position of
this Commission that ACR grades can
and should be disclosed to the person
to whom the ACRs related and not to
the third – parties except under
exceptional circumstances.
Commission’s decision in P.K. Sarvin
Vs. Directorate General of Works
(CPWD); Appeal No.
CIC/WB/A/2007/00422; Date of Decision;
19.02.2009 followed a Supreme Court
order in Dev Dutt Vs. UOI (Civil
Appeal No. 7631/2002).
7. An examination on file of the comments
made by the reporting and the
reviewing officers in the ACRs of a
"public servant, stands on the same"
footing as the ACRs itself. It
"cannot, therefore, be authorized to be"
"disclosed to a third­party. In fact,"
even disclosure of such files to the
5
Page 5
public servant to whom the ACRs may
relate is itself open to debate.
"8. In view of the above, I am not in a"
position to authorize disclosure of
the information.”
"6. On being aggrieved by the above order, the"
appellant filed a writ petition bearing W.P(C) No. 6756
of 2010 before the Delhi High Court which was rejected
by the learned Single Judge vide judgment dated 8th
"December, 2011 relying on a judgment of Delhi High"
Court in Arvind Kejriwal vs. Central Public
Information Officer reported in AIR 2010 Delhi 216.
The learned Single Judge while observing that except in
"cases involving overriding public interest, the ACR"
record of an officer cannot be disclosed to any person
"other than the officer himself/herself, remanded the"
matter to the Central Information Commission (CIC for
"short) for considering the issue whether, in the larger"
"public interest, the information sought by the"
appellant could be disclosed. It was observed that if
the CIC comes to a conclusion that larger public
interest justifies the disclosure of the information
"sought by the appellant, the CIC would follow the"
procedure prescribed under Section 11 of Act.
"7. On an appeal to the above order, by the impugned"
"judgment dated 20th April, 2012 the Division Bench of"
6
Page 6
Delhi High Court in LPA No.22 of 2012 dismissed the
same. The Division Bench held that the judgment of the
Delhi High Court Coordinate Bench in Arvind Kejriwal
case (supra) binds the Court on all fours to the said
case also.
The Division Bench further held that the procedure
under Section 11 (1) is mandatory and has to be
followed which includes giving of notice to the
concerned officer whose ACR was sought for. If that
"officer, pleads private defence such defence has to be"
examined while deciding the issue as to whether the
private defence is to prevail or there is an element of
overriding public interest which would outweigh the
private defence.
"8. Mr. Prashant Bhushan, learned counsel for the"
appellant submitted that the appellant wanted
"information in a separate file other than the ACR file,"
"namely, the “follow up action” which was taken by the"
Ministry of Finance about the remarks against
‘integrity’ in the ACR of the Member. According to
"him, it was different from asking the copy of the ACR"
"itself. However, we find that the learned Single Judge"
at the time of hearing ordered for production of the
original records and after perusing the same came to
7
Page 7
the conclusion that the information sought for was not
different or distinguished from ACR. The learned
Single Judge held that the said file contains
correspondence in relation to the remarks recorded by
the President of the CESTAT in relation to Ms. Jyoti
"Balasundaram, a Member and also contains the reasons"
why the said remarks have eventually been dropped.
"Therefore, recordings made in the said file constitute"
an integral part of the ACR record of the officer in
question.
Mr. Bhushan then submitted that ACR of a public
servant has a relationship with public activity as he
"discharges public duties and, therefore, the matter is"
of a public interest; asking for such information does
not amount to any unwarranted invasion in the privacy
of public servant. Referring to this Court’s decision
"in the case of State of U.P. vs. Raj Narain, AIR 1975"
"SC 865, it was submitted that when such information can"
"be supplied to the Parliament, the information relating"
to the ACR cannot be treated as personal document or
private document.
9. It was also contended that with respect to this
issue there are conflicting decisions of Division Bench
of Kerala High Court in Centre for Earth Sciences
8
Page 8
Studies vs. Anson Sebastian reported in 2010 ( 2) KLT
233 and the Division Bench of Delhi High Court in
Arvind Kejriwal vs. Central Public Information Officer
reported in AIR 2010 Delhi 216.
"10. Shri A. S. Chandiok, learned Additional Solicitor"
"General appearing for the respondents, in reply"
contended that the information relating to ACR relates
to the personal information and may cause unwarranted
"invasion of privacy of the individual, therefore,"
according to him the information sought for by the
appellant relating to analysis of ACR of Ms. Jyoti
Balasundaram is exempted under Section 8(1)(j) of the
RTI Act and hence the same cannot be furnished to the
appellant. He relied upon decision of this Court in
Girish Ramchandra Deshpande vs. Central Information
"Commissioner and others, reported in (2013) 1 SCC 212."
"11. We have heard the learned counsel for the parties,"
"perused the records, the judgements as referred above"
and the relevant provisions of the Right to Information
"Act, 2005."
12. Section 8 deals with exemption from disclosure of
"information. Under clause (j) of Section 8(1), there"
shall be no obligation to give any citizen information
which relates to personal information the disclosure of
9
Page 9
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 is satisfied that
the larger public interest justifies the disclosure of
such information. The said clause reads as follows:­
“Section 8 ­ Exemption from disclosure of
information.­ (1) Notwithstanding anything
"contained in this Act, there shall be no"
"obligation to give any citizen,­­"
xxx xxx xxx
xxx xxx xxx
(j) information which relates to personal
information the disclosure of which has no
"relationship to any public activity or interest,"
or which would cause unwarranted invasion of the
privacy of the individual unless the Central
Public Information Officer or the State Public
"Information Officer or the appellate authority,"
"as the case may be, is satisfied that the larger"
public interest justifies the disclosure of such
information:
Provided that the information which cannot be
denied to the Parliament or a State Legislature
shall not be denied to any person.”
13. On the other hand Section 11 deals with third
party information and the circumstances when such
information can be disclosed and the manner in which
"it is to be disclosed, if so decided by the Competent"
"Authority. Under Section 11(1), if the information"
relates to or has been supplied by a third party and
10
Page 10
"has been treated as confidential by the third party,"
and if the Central Public Information Officer or a
State Public Information Officer intends to disclose
any such information or record on a request made under
"the Act, in such case after written notice to the third"
"party of the request, the Officer may disclose the"
"information, if the third party agrees to such request"
or if the public interest in disclosure outweighs in
importance any possible harm or injury to the interests
of such third party. Section 11(1) is quoted
hereunder:
“Section 11 ­ Third party information.­ (1)
Where a Central Public Information Officer or a
"State Public Information Officer, as the case"
"may be, intends to disclose any information or"
"record, or part thereof on a request made under"
"this Act, which relates to or has been supplied"
by a third party and has been treated as
"confidential by that third party, the Central"
Public Information Officer or State Public
"Information Officer, as the case may be, shall,"
within five days from the receipt of the
"request, give a written notice to such third"
party of the request and of the fact that the
Central Public Information Officer or State
"Public Information Officer, as the case may be,"
"intends to disclose the information or record,"
"or part thereof, and invite the third party to"
"make a submission in writing or orally,"
regarding whether the information should be
"disclosed, and such submission of the third"
party shall be kept in view while taking a
decision about disclosure of information:
Provided that except in the case of trade or
"commercial secrets protected by law, disclosure"
may be allowed if the public interest in
disclosure outweighs in importance any possible
11
Page 11
harm or injury to the interests of such third
party.”
14. In Centre for Earth Sciences Studies vs. Anson
Sebastian reported in 2010(2) KLT 233 the Kerala High
Court considered the question whether the information
sought relates to personal information of other
"employees, the disclosure of which is prohibited"
under Section 8(1) (j) of the RTI Act. In that case
the Kerala High Court noticed that the information
sought for by the first respondent pertains to copies
of documents furnished in a domestic enquiry against
one of the employees of the appellant­organization.
Particulars of confidential reports maintained in
respect of co­employees in the above said case (all
of whom were Scientists) were sought from the
appellant­organisation. The Division Bench of Kerala
High Court after noticing the relevant provisions of
RTI Act held that documents produced in a domestic
enquiry cannot be treated as documents relating to
"personal information of a person, disclosure of which"
will cause unwarranted invasion of privacy of such
person. The Court further held that the confidential
reports of the employees maintained by the employer
cannot be treated as records pertaining to personal
12
Page 12
information of an employee and publication of the
same is not prohibited under Section 8(1) (j) of the
RTI Act.
15. The Delhi High Court in Arvind Kejriwal vs.
Central Public Information Officer reported in AIR
2010 Delhi 216 considered Section 11 of the RTI Act.
The Court held that once the information seeker is
"provided information relating to a third party, it is"
no longer in the private domain. Such information
seeker can then disclose in turn such information to
"the whole World. Therefore, for providing the"
information the procedure outlined under Section
11(1) cannot be dispensed with. The following was
the observation made by the Delhi High Court in
Arvind Kejriwal (supra):
"“22. Turning to the case on hand, the documents"
of which copies are sought are in the personal
files of officers working at the levels of
"Deputy Secretary, Joint Secretary, Director,"
Additional Secretary and Secretary in the
Government of India. Appointments to these posts
are made on a comparative assessment of the
relative merits of various officers by a
departmental promotion committee or a selection
"committee, as the case may be. The evaluation of"
the past performance of these officers is
contained in the ACRs. On the basis of the
comparative assessment a grading is given. Such
information cannot but be viewed as personal to
such officers. Vis­à­vis a person who is not an
employee of the Government of India and is
seeking such information as a member of the
"public, such information has to be viewed as"
13
Page 13
Constituting 'third party information'. This can
be contrasted with a situation where a
government employee is seeking information
"concerning his own grading, ACR etc. That"
obviously does not involve 'third party'
information.
"23. What is, however, important to note is that"
it is not as if such information is totally
exempt from disclosure. When an application is
"made seeking such information, notice would be"
issued by the CIC or the CPIOs or the State
"Commission, as the case may be, to such 'third"
"party' and after hearing such third party, a"
decision will be taken by the CIC or the CPIOs
or the State Commission whether or not to order
disclosure of such information. The third party
may plead a 'privacy' defence. But such defence
"may, for good reasons, be overruled. In other"
"words, after following the procedure outlined in"
"Section 11(1) of the RTI Act, the CIC may still"
decide that information should be disclosed in
public interest overruling any objection that
the third party may have to the disclosure of
such information.
"24. Given the above procedure, it is not"
possible to agree with the submission of Mr.
Bhushan that the word 'or' occurring in Section
"11(1) in the phrase information ""which relates"
"to or has been supplied by a third party"" should"
"be read as 'and'. Clearly, information relating"
to a third party would also be third party
information within the meaning of Section 11(1)
of the RTI Act. Information provided by such
third party would of course also be third party
information. These two distinct categories of
third party information have been recognized
under Section 11(1) of the Act. It is not
possible for this Court in the circumstances to
read the word 'or' as 'and'. The mere fact that
"inspection of such files was permitted, without"
following the mandatory procedure under Section
"11(1) does not mean that, at the stage of"
"furnishing copies of the documents inspected,"
"the said procedure can be waived. In fact, the"
procedure should have been followed even prior
"to permitting inspection, but now the clock"
cannot be put back as far as that is concerned.
14
Page 14
25. The logic of the Section 11(1) RTI Act is
plain. Once the information seeker is provided
"information relating to a third party, it is no"
longer in the private domain. Such information
seeker can then disclose in turn such
information to the whole world. There may be an
officer who may not want the whole world to know
why he or she was overlooked for promotion. The
defence of privacy in such a case cannot be
lightly brushed aside saying that since the
officer is a public servant he or she cannot
possibly fight shy of such disclosure. There may
be yet another situation where the officer may
have no qualms about such disclosure. And there
may be a third category where the credentials of
the officer appointed may be thought of as being
in public interest to be disclosed. The
importance of the post held may also be a factor
that might weigh with the information officer.
This exercise of weighing the competing
interests can possibly be undertaken only after
hearing all interested parties. Therefore the
procedure under Section 11(1) RTI Act.
"26. This Court, therefore, holds that the CIC"
was not justified in overruling the objection of
the UOI on the basis of Section 11(1) of the
RTI Act and directing the UOI and the DoPT to
provide copies of the documents as sought by Mr.
Kejriwal. Whatever may have been the past
practice when disclosure was ordered of
information contained in the files relating to
appointment of officers and which information
"included their ACRs, grading, vigilance"
"clearance etc., the mandatory procedure outlined"
under Section 11(1) cannot be dispensed with.
The short question framed by this Court in the
first paragraph of this judgment was answered in
the affirmative by the CIC. This Court reverses
the CIC's impugned order and answers it in the
negative.
27. The impugned order dated 12th June 2008 of
the CIC and the consequential order dated 19th
November 2008 of the CIC are hereby set aside.
The appeals by Mr. Kejriwal will be restored to
the file of the CIC for compliance with the
procedure outlined under Section 11(1) RTI Act
limited to the information Mr. Kejriwal now
seeks.”
15
Page 15
16. Recently similar issue fell for consideration
before this Court in Girish Ramchandra Deshpande v.
Central Information Commissioner and others reported in
(2013) 1 SCC 212. That was a case in which Central
Information Commissioner denied the information
pertaining to the service career of the third party to
the said case and also denied the details relating to
"assets, liabilities, moveable and immovable properties"
of the third party on the ground that the information
sought for was qualified to be personal information as
defined in clause (j) of Section 8(1) of the RTI Act.
In that case this Court also considered the question
"whether the orders of censure/punishment, etc. are"
personal information and the performance of an
"employee/officer in an organization, commonly known as"
Annual Confidential Report can be disclosed or not.
This Court after hearing the parties and noticing the
provisions of RTI Act held:
“11. The petitioner herein sought for copies of
"all memos, show­cause notices and"
censure/punishment awarded to the third
respondent from his employer and also details
viz. movable and immovable properties and also
"the details of his investments, lending and"
borrowing from banks and other financial
"institutions. Further, he has also sought for"
the details of gifts stated to have been
"accepted by the third respondent, his family"
members and friends and relatives at the
marriage of his son. The information mostly
sought for finds a place in the income tax
returns of the third respondent. The question
16
Page 16
that has come up for consideration is: whether
the abovementioned information sought for
qualifies to be “personal information” as
defined in clause (j) of Section 8(1) of the RTI
Act.
12. We are in agreement with the CIC and the
courts below that the details called for by the
petitioner i.e. copies of all memos issued to
"the third respondent, show­cause notices and"
"orders of censure/punishment, etc. are qualified"
to be personal information as defined in clause
(j) of Section 8(1) of the RTI Act. The
performance of an employee/officer in an
organisation is primarily a matter between the
employee and the employer and normally those
aspects are governed by the service rules which
fall under the expression “personal
"information”, the disclosure of which has no"
relationship to any public activity or public
"interest. On the other hand, the disclosure of"
which would cause unwarranted invasion of
"privacy of that individual. Of course, in a"
"given case, if the Central Public Information"
Officer or the State Public Information Officer
or the appellate authority is satisfied that the
larger public interest justifies the disclosure
"of such information, appropriate orders could be"
passed but the petitioner cannot claim those
details as a matter of right.
13. The details disclosed by a person in his
income tax returns are “personal information”
which stand exempted from disclosure under
"clause (j) of Section 8(1) of the RTI Act,"
unless involves a larger public interest and the
Central Public Information Officer or the State
Public Information Officer or the appellate
authority is satisfied that the larger public
interest justifies the disclosure of such
information.
14. The petitioner in the instant case has not
made a bona fide public interest in seeking
"information, the disclosure of such information"
would cause unwarranted invasion of privacy of
the individual under Section 8(1)(j) of the RTI
Act.
"15. We are, therefore, of the view that the"
petitioner has not succeeded in establishing
that the information sought for is for the
"larger public interest. That being the fact, we"
are not inclined to entertain this special leave
"petition. Hence, the same is dismissed.”"
17
Page 17
17. In view of the discussion made above and the
decision in this Court in Girish Ramchandra
"Deshpande(supra), as the appellant sought for"
inspection of documents relating to the ACR of the
"Member, CESTAT, inter alia, relating to adverse"
entries in the ACR and the ‘follow up action’ taken
"therein on the question of integrity, we find no reason"
to interfere with the impugned judgment passed by the
Division Bench whereby the order passed by the learned
"Single Judge was affirmed. In absence of any merit,"
the appeal is dismissed but there shall be no order as
to costs.
………..………………………………………..J.
(G.S. SINGHVI)
………………………………………………….J.
(SUDHANSU JYOTI
MUKHOPADHAYA)
"NEW DELHI,"
"APRIL 16, 2013."
18
Page 18
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 9017 OF 2013
(Arising out of SLP (C) No.24290 of 2012)
Thalappalam Ser. Coop. Bank
Ltd. and others Appellants
Versus
State of Kerala and others
Respondents
WITH
"CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013"
"(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797"
of 2013)
J U D G M E N T
"K.S. Radhakrishnan, J."
1. Leave granted.
"2. We are, in these appeals, concerned with the question"
whether a co-operative society registered under the Kerala
"Co-operative Societies Act, 1969 (for short “the Societies"
Page 1
2
Act”) will fall within the definition of “public authority” under
"Section 2(h) of the Right to Information Act, 2005 (for short"
“the RTI Act”) and be bound by the obligations to provide
information sought for by a citizen under the RTI Act.
"3. A Full Bench of the Kerala High Court, in its judgment"
"reported in AIR 2012 Ker 124, answered the question in the"
affirmative and upheld the Circular No.23 of 2006 dated
"01.06.2006, issued by the Registrar of the Co-operative"
"Societies, Kerala stating that all the co-operative institutions"
"coming under the administrative control of the Registrar, are"
“public authorities” within the meaning of Section 2(h) of the
RTI Act and obliged to provide information as sought for.
The question was answered by the Full Bench in view of the
conflicting views expressed by a Division Bench of the Kerala
"High Court in Writ Appeal No.1688 of 2009, with an earlier"
judgment of the Division Bench reported in Thalapalam
Service Co-operative Bank Ltd. v. Union of India AIR
"2010 Ker 6, wherein the Bench took the view that the"
question as to whether a co-operative society will fall under
Page 2
3
"Section 2(h) of the RTI Act is a question of fact, which will"
depend upon the question whether it is substantially
"financed, directly or indirectly, by the funds provided by the"
"State Government which, the Court held, has to be decided"
depending upon the facts situation of each case.
"4. Mr. K. Padmanabhan Nair, learned senior counsel"
appearing for some of the societies submitted that the views
expressed by the Division Bench in Thalapalam Service
"Co-operative Bank Ltd. (supra) is the correct view, which"
calls for our approval. Learned senior counsel took us
through the various provisions of the Societies Act as well as
of the RTI Act and submitted that the societies are
autonomous bodies and merely because the officers
functioning under the Societies Act have got supervisory
control over the societies will not make the societies public
authorities within the meaning of Section 2(h) of the RTI Act.
Learned senior counsel also submitted that these societies
"are not owned, controlled or substantially financed, directly"
"or indirectly, by the State Government. Learned senior"
Page 3
4
counsel also submitted that the societies are not statutory
bodies and are not performing any public functions and will
not come within the expression “state” within the meaning
under Article 12 of the Constitution of India.
"5. Mr. Ramesh Babu MR, learned counsel appearing for"
"the State, supported the reasoning of the impugned"
judgment and submitted that such a circular was issued by
the Registrar taking into consideration the larger public
interest so as to promote transparency and accountability in
the working of every co-operative society in the State of
Kerala. Reference was also made to various provisions of
the Societies Act and submitted that those provisions would
indicate that the Registrar has got all pervading control over
"the societies, including audit, enquiry and inspection and the"
power to initiate surcharge proceedings. Power is also
vested on the Registrar under Section 32 of the Societies Act
to supersede the management of the society and to appoint
an administrator. This would indicate that though societies
"are body corporates, they are under the statutory control of"
Page 4
5
the Registrar of Co-operative Societies. Learned counsel
submitted that in such a situation they fall under the
definition of “pubic authority” within the meaning of Section
"2(h) of the RTI Act. Shri Ajay, learned counsel appearing for"
"the State Information Commission, stated that the"
applicability of the RTI Act cannot be excluded in terms of
the clear provision of the Act and they are to be interpreted
to achieve the object and purpose of the Act. Learned
counsel submitted that at any rate having regard to the
"definition of “information” in Section 2(f) of the Act, the"
access to information in relation to Societies cannot be
denied to a citizen.
Facts:
"6. We may, for the disposal of these appeals, refer to the"
facts pertaining to Mulloor Rural Co-operative Society Ltd. In
"that case, one Sunil Kumar stated to have filed an"
application dated 8.5.2007 under the RTI Act seeking
particulars relating to the bank accounts of certain members
"of the society, which the society did not provide. Sunil"
Page 5
6
Kumar then filed a complaint dated 6.8.2007 to the State
"Information Officer, Kerala who, in turn, addressed a letter"
dated 14.11.2007 to the Society stating that application filed
"by Sunil Kumar was left unattended. Society, then, vide"
letter dated 24.11.2007 informed the applicant that the
information sought for is “confidential in nature” and one
"warranting “commercial confidence”. Further, it was also"
pointed out that the disclosure of the information has no
relationship to any “public activity” and held by the society
"in a “fiduciary capacity”. Society was, however, served with"
an order dated 16.1.2008 by the State Information
"Commission, Kerala, stating that the Society has violated the"
mandatory provisions of Section 7(1) of the RTI Act
rendering themselves liable to be punished under Section 20
of the Act. State Information Officer is purported to have
relied upon a circular No.23/2006 dated 01.06.2006 issued
"by the Registrar, Co-operative Societies bringing in all"
societies under the administrative control of the Registrar of
"Co-operative Societies, as “public authorities” under Section"
2(h) of the RTI Act.
Page 6
7
7. Mulloor Co-operative Society then filed Writ Petition
"No.3351 of 2008 challenging the order dated 16.1.2008,"
which was heard by a learned Single Judge of the High Court
along with other writ petitions. All the petitions were
disposed of by a common judgment dated 03.04.2009
holding that all co-operative societies registered under the
Societies Act are public authorities for the purpose of the RTI
Act and are bound to act in conformity with the obligations in
Chapter 11 of the Act and amenable to the jurisdiction of the
State Information Commission. The Society then preferred
Writ Appeal No.1688 of 2009. While that appeal was
"pending, few other appeals including WA No.1417 of 2009,"
filed against the common judgment of the learned Single
Judge dated 03.04.2009 came up for consideration before
another Division Bench of the High Court which set aside the
"judgment of the learned Single Judge dated 03.04.2009, the"
judgment of which is reported in AIR 2010 Ker 6. The Bench
held that the obedience to Circular No.23 dated 1.6.2006 is
optional in the sense that if the Society feels that it satisfies
Page 7
8
"the definition of Section 2(h), it can appoint an Information"
Officer under the RTI Act or else the State Information
Commissioner will decide when the matter reaches before
"him, after examining the question whether the Society is"
"substantially financed, directly or indirectly, by the funds"
"provided by the State Government. The Division Bench,"
"therefore, held that the question whether the Society is a"
public authority or not under Section 2(h) is a disputed
question of fact which has to be resolved by the authorities
under the RTI Act.
8. Writ Appeal No.1688 of 2009 later came up before
"another Division Bench, the Bench expressed some"
reservations about the views expressed by the earlier
Division Bench in Writ Appeal No.1417 of 2009 and vide its
"order dated 24.3.2011 referred the matter to a Full Bench, to"
examine the question whether co-operative societies
registered under the Societies Act are generally covered
under the definition of Section 2(h) of the RTI Act. The Full
Bench answered the question in the affirmative giving a
Page 8
9
"liberal construction of the words “public authority”, bearing"
"in mind the “transformation of law” which, according to the"
"Full Bench, is to achieve transparency and accountability"
with regard to affairs of a public body.
"9. We notice, the issue raised in these appeals is of"
considerable importance and may have impact on similar
other Societies registered under the various State
enactments across the country.
10. The State of Kerala has issued a letter dated 5.5.2006
"to the Registrar of Co-operative Societies, Kerala with"
"reference to the RTI Act, which led to the issuance of Circular"
"No.23/2006 dated 01.06.2006, which reads as under:"
“G1/40332/05
"Registrar of Co-operative Societies,"
"Thiruvananthapuram, Dated 01.06.2006"
Circular No.23/2006
"Sub: Right to Information Act, 2005- Co-operative"
Institutions included in the definition of “Public Authority”
Ref: Governments Letter No.3159/P.S.1/06
Dated 05.05.2006
Page 9
10
"According to Right to Information Act, 2005, sub-section"
(1) and (2) of Section 5 of the Act severy public authority
within 100 days of the enactment of this Act designate as
many officers as public information officers as may be
necessary to provide information to persons requesting for
information under the Act. In this Act Section 2(h) defines
institutions which come under the definition of public
authority. As per the reference letter the government
"informed that, according to Section 2(h) of the Act all"
institutions formed by laws made by state legislature is a
“public authority” and therefore all co-operative
institutions coming under the administrative control of
The Registrar of co-operative societies are also public
authorities.
In the above circumstance the following directions are
issued:
1. All co-operative institutions coming under the
administrative control of the Registrar of co-operative
societies are “public authorities” under the Right to
"Information Act, 2005 (central law No.22 of 2005). Co-"
operative institutions are bound to give all information
"to applications under the RTI Act, if not given they will"
be subjected to punishment under the Act. For this all
co-operative societies should appoint public
information/assistant public information officers
immediately and this should be published in the
government website.
2. For giving information for applicants government order
No.8026/05/government administration department act
Page 10
11
and rule can be applicable and 10 rupees can be
charged as fees for each application. Also as per GAD
Act and rule and the government Order No.2383/06
dated 01.04.2006.
3. Details of Right to Information Act are available in the
government website (www.kerala.gov.in..... ) or right to
information gov.in ) other details regarding the Act are
also available in the government website.
4. Hereafter application for information from co-operative
institutions need not be accepted by the information
officers of this department. But if they get such
applications it should be given back showing the
reasons or should be forwarded to the respective co-
operative institutions with necessary directions and the
applicant should be informed about this. In this case it
is directed to follow the time limit strictly.
5. It is directed that all joint registrars/assistant registrars
should take immediate steps to bring this to the urgent
notice of all co-operative institutions. They should
inform to this office the steps taken within one week.
The Government Order No.2389/06 dated 01.04.2006 is
also enclosed.
Sd/-
V. Reghunath
Registrar of co-operative societies (in
charge)”
"11. The State Government, it is seen, vide its letter dated"
5.5.2006 has informed the Registrar of Co-operative
Page 11
12
"Societies that, as per Section 2(h) of the Act, all institutions"
formed by laws made by State Legislature is a “public
"authority” and, therefore, all co-operative institutions"
coming under the administrative control of the Registrar of
Co-operative Societies are also public authorities.
12. We are in these appeals concerned only with the co-
operative societies registered or deemed to be registered
"under the Co-operative Societies Act, which are not owned,"
controlled or substantially financed by the State or Central
"Government or formed, established or constituted by law"
made by Parliament or State Legislature.
Co-operative Societies and Article 12 of the
Constitution:
"13. We may first examine, whether the Co-operative"
"Societies, with which we are concerned, will fall within the"
expression “State” within the meaning of Article 12 of the
"Constitution of India and, hence subject to all constitutional"
limitations as enshrined in Part III of the Constitution. This
Page 12
13
Court in U.P. State Co-operative Land Development
Bank Limited v. Chandra Bhan Dubey and others
"(1999) 1 SCC 741, while dealing with the question of the"
maintainability of the writ petition against the U.P. State Co-
operative Development Bank Limited held the same as an
instrumentality of the State and an authority mentioned in
"Article 12 of the Constitution. On facts, the Court noticed"
that the control of the State Government on the Bank is all
pervasive and that the affairs of the Bank are controlled by
the State Government though it is functioning as a co-
"operative society, it is an extended arm of the State and"
thus an instrumentality of the State or authority as
mentioned under Article 12 of the Constitution. In All India
Sainik Schools employees’ Association v. Defence
"Minister-cum-Chairman Board of Governors, Sainik"
"Schools Society, New Delhi and others (1989)"
"Supplement 1 SCC 205, this Court held that the Sainik"
School society is “State” within the meaning of Article 12 of
the Constitution after having found that the entire funding is
by the State Government and by the Central Government
Page 13
14
and the overall control vests in the governmental authority
and the main object of the society is to run schools and
prepare students for the purpose feeding the National
Defence Academy.
14. This Court in Executive Committee of Vaish Degree
"College, Shamli and Others v. Lakshmi Narain and"
"Others (1976) 2 SCC 58, while dealing with the status of"
the Executive Committee of a Degree College registered
"under the Co-operative Societies Act, held as follows:"
“10………It seems to us that before an institution
can be a statutory body it must be created by or
under the statute and owe its existence to a
statute. This must be the primary thing which has
got to be established. Here a distinction must be
made between an institution which is not created
by or under a statute but is governed by certain
statutory provisions for the proper maintenance
and administration of the institution. There have
been a number of institutions which though not
created by or under any statute have adopted
"certain statutory provisions, but that by itself is"
"not, in our opinion, sufficient to clothe the"
institution with a statutory character……….”
"15. We can, therefore, draw a clear distinction between a"
"body which is created by a Statute and a body which, after"
Page 14
15
"having come into existence, is governed in accordance with"
"the provisions of a Statute. Societies, with which we are"
"concerned, fall under the later category that is governed by"
"the Societies Act and are not statutory bodies, but only body"
corporate within the meaning of Section 9 of the Kerala Co-
operative Societies Act having perpetual succession and
"common seal and hence have the power to hold property,"
"enter into contract, institute and defend suites and other"
legal proceedings and to do all things necessary for the
"purpose, for which it was constituted. Section 27 of the"
Societies Act categorically states that the final authority of a
society vests in the general body of its members and every
society is managed by the managing committee constituted
in terms of the bye-laws as provided under Section 28 of the
Societies Act. Final authority so far as such types of
"Societies are concerned, as Statute says, is the general body"
and not the Registrar of Cooperative Societies or State
Government.
Page 15
16
16. This Court in Federal Bank Ltd. v. Sagar Thomas
"and Others (2003) 10 SCC 733, held as follows:"
“32.Merely because Reserve Bank of India
lays the banking policy in the interest of the
banking system or in the interest of monetary
stability or sound economic growth having due
regard to the interests of the depositors etc. as
provided under Section 5(c)(a) of the Banking
Regulation Act does not mean that the private
companies carrying on the business or commercial
"activity of banking, discharge any public function"
or public duty. These are all regulatory measures
applicable to those carrying on commercial
activity in banking and these companies are to act
according to these provisions failing which certain
consequences follow as indicated in the Act itself.
As to the provision regarding acquisition of a
"banking company by the Government, it may be"
pointed out that any private property can be
acquired by the Government in public interest. It is
now a judicially accepted norm that private
interest has to give way to the public interest. If a
private property is acquired in public interest it
does not mean that the party whose property is
acquired is performing or discharging any function
or duty of public character though it would be so
for the acquiring authority”.
"17. Societies are, of course, subject to the control of the"
"statutory authorities like Registrar, Joint Registrar, the"
"Government, etc. but cannot be said that the State exercises"
any direct or indirect control over the affairs of the society
Page 16
17
which is deep and all pervasive. Supervisory or general
"regulation under the statute over the co-operative societies,"
which are body corporate does not render activities of the
body so regulated as subject to such control of the State so
as to bring it within the meaning of the “State” or
instrumentality of the State. Above principle has been
"approved by this Court in S.S. Rana v. Registrar, Co-"
operative Societies and another (2006) 11 SCC 634. In
that case this Court was dealing with the maintainability of
the writ petition against the Kangra Central Co-operative
"Society Bank Limited, a society registered under the"
provisions of the Himachal Pradesh Co-operative Societies
"Act, 1968. After examining various provisions of the H.P. Co-"
operative Societies Act this Court held as follows:
“9. It is not in dispute that the Society has not
been constituted under an Act. Its functions like
any other cooperative society are mainly
"regulated in terms of the provisions of the Act,"
except as provided in the bye-laws of the Society.
The State has no say in the functions of the
"Society. Membership, acquisition of shares and all"
other matters are governed by the bye-laws
framed under the Act. The terms and conditions of
"an officer of the cooperative society, indisputably,"
"are governed by the Rules. Rule 56, to which"
Page 17
18
"reference has been made by Mr Vijay Kumar, does"
not contain any provision in terms whereof any
legal right as such is conferred upon an officer of
the Society.
10. It has not been shown before us that the State
exercises any direct or indirect control over the
affairs of the Society for deep and pervasive
control. The State furthermore is not the majority
shareholder. The State has the power only to
"nominate one Director. It cannot, thus, be said"
that the State exercises any functional control
over the affairs of the Society in the sense that the
majority Directors are nominated by the State. For
arriving at the conclusion that the State has a
"deep and pervasive control over the Society,"
several other relevant questions are required to be
"considered, namely, (1) How was the Society"
created? (2) Whether it enjoys any monopoly
character? (3) Do the functions of the Society
partake to statutory functions or public functions?
and (4) Can it be characterised as public
authority?
"11. Respondent 2, the Society does not answer"
any of the aforementioned tests. In the case of a
"non-statutory society, the control thereover would"
mean that the same satisfies the tests laid down
by this Court in Ajay Hasia v. Khalid Mujib
Sehravardi. [See Zoroastrian Coop. Housing
"Society Ltd. v. Distt. Registrar, Coop. Societies"
(Urban).]
12. It is well settled that general regulations under
"an Act, like the Companies Act or the Cooperative"
"Societies Act, would not render the activities of a"
company or a society as subject to control of the
State. Such control in terms of the provisions of
the Act are meant to ensure proper functioning of
Page 18
19
the society and the State or statutory authorities
would have nothing to do with its day-to-day
functions.”
"18. We have, on facts, found that the Co-operative"
"Societies, with which we are concerned in these appeals, will"
not fall within the expression “State” or “instrumentalities of
the State” within the meaning of Article 12 of the
Constitution and hence not subject to all constitutional
limitations as enshrined in Part III of the Constitution. We
"may, however, come across situations where a body or"
organization though not a State or instrumentality of the
"State, may still satisfy the definition of public authority"
"within the meaning of Section 2(h) of the Act, an aspect"
which we may discuss in the later part of this Judgment.
Constitutional provisions and Co-operative autonomy:
19. Rights of the citizens to form co-operative societies
"voluntarily, is now raised to the level of a fundamental right"
and State shall endeavour to promote their autonomous
"functioning. The Parliament, with a view to enhance public"
faith in the co-operative institutions and to insulate them to
Page 19
20
avoidable political or bureaucratic interference brought in
"Constitutional (97th Amendment) Act, 2011, which received"
"the assent of the President on 12.01.2012, notified in the"
Gazette of India on 13.01.2012 and came into force on
15.02.2012.
20. Constitutional amendment has been effected to
encourage economic activities of co-operatives which in turn
help progress of rural India. Societies are expected not only
to ensure autonomous and democratic functioning of co-
"operatives, but also accountability of the management to the"
members and other share stake-holders. Article 19 protects
certain rights regarding freedom of speech. By virtue of
above amendment under Article 19(1)(c) the words “co-
operative societies” are added. Article 19(1)(c) reads as
under:
“19(1)(c) – All citizens shall have the right to form
associations or unions or co-operative societies”.
"Article 19(1)(c), therefore, guarantees the freedom to form"
"an association, unions and co-operative societies. Right to"
Page 20
21
"form a co-operative society is, therefore, raised to the level"
"of a fundamental right, guaranteed under the Constitution of"
India. Constitutional 97th Amendment Act also inserted a
new Article 43B with reads as follows :-
“the State shall endeavour to promote voluntary
"formation, autonomous functioning, democratic"
control and professional management of co-
operative societies”.
"21. By virtue of the above-mentioned amendment, Part IX-"
B was also inserted containing Articles 243ZH to 243ZT.
"Cooperative Societies are, however, not treated as units of"
"self-government, like Panchayats and Municipalities."
22. Article 243(ZL) dealing with the supersession and
suspension of board and interim management states that
notwithstanding anything contained in any law for the time
"being in force, no board shall be superseded or kept under"
suspension for a period exceeding six months. It provided
further that the Board of any such co-operative society shall
not be superseded or kept under suspension where there is
no government shareholding or loan or financial assistance
Page 21
22
or any guarantee by the Government. Such a constitutional
restriction has been placed after recognizing the fact that
there are co-operative societies with no government share
holding or loan or financial assistance or any guarantee by
the government.
23. Co-operative society is a state subject under Entry 32
List I Seventh Schedule to the Constitution of India. Most of
the States in India enacted their own Co-operative Societies
Act with a view to provide for their orderly development of
the cooperative sector in the state to achieve the objects of
"equity, social justice and economic development, as"
"envisaged in the Directive Principles of State Policy,"
enunciated in the Constitution of India. For co-operative
"societies working in more than one State, The Multi State Co-"
"operative Societies Act, 1984 was enacted by the Parliament"
under Entry 44 List I of the Seventh Schedule of the
Constitution. Co-operative society is essentially an
association or an association of persons who have come
Page 22
23
together for a common purpose of economic development or
for mutual help.
Right to Information Act
24. The RTI Act is an Act enacted to provide for citizens to
"secure, access to information under the control of public"
authorities and to promote transparency and accountability
in the working of every public authority. The preamble of
the Act reads as follows:
“An Act to provide for setting out the
practical regime of right to information for citizens
to secure access to information under the control
"of public authorities, in order to promote"
transparency and accountability in the working of
"every public authority, the constitution of a"
Central Information Commission and State
Information Commissions and for matters
connected therewith or incidental thereto.
WHEREAS the Constitution of India has
established democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of information
which are vital to its functioning and also to
contain corruption and to hold Governments and
their instrumentalities accountable to the
governed;
Page 23
24
AND WHEREAS revelation of information in
actual practice is likely to conflict with other public
interests including efficient operations of the
"Governments, optimum use of limited fiscal"
resources and the preservation of confidentiality of
sensitive information;
AND WHEREAS it is necessary to harmonise
these conflicting interests while preserving the
paramountcy of the democratic ideal;
"NOW, THEREFORE, it is expedient to provide"
for furnishing certain information to citizens who
desire to have it.”
25. Every public authority is also obliged to maintain all its
record duly catalogued and indexed in a manner and the
form which facilitates the right to information under this Act
and ensure that all records that are appropriate to be
"computerized are, within a reasonable time and subject to"
"availability of resources, computerized and connected"
through a network all over the country on different systems
so that access to such record is facilitated. Public authority
"has also to carry out certain other functions also, as provided"
under the Act.
26. The expression “public authority” is defined under
"Section 2(h) of the RTI Act, which reads as follows:"
Page 24
25
"“2. Definitions._ In this Act, unless the context"
otherwise requires :
"(h) ""public authority"" means any authority or"
body or institution of self-government
established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State
Legislature;
(d) by notification issued or order made by
"the appropriate Government, and"
includes any—
"(i) body owned, controlled or"
substantially financed;
(ii) non-Government organisation
"substantially financed, directly or"
indirectly by funds provided by the
appropriate Government”
"27. Legislature, in its wisdom, while defining the expression"
"“public authority” under Section 2(h), intended to embrace"
"only those categories, which are specifically included, unless"
the context of the Act otherwise requires. Section 2(h) has
used the expressions ‘means’ and includes’. When a word is
"defined to ‘mean’ something, the definition is prima facie"
restrictive and where the word is defined to ‘include’ some
Page 25
26
"other thing, the definition is prima facie extensive. But when"
"both the expressions “means” and “includes” are used, the"
categories mentioned there would exhaust themselves.
Meanings of the expressions ‘means’ and ‘includes’ have
been explained by this Court in Delhi Development
Authority v. Bhola Nath Sharma (Dead) by LRs and
"others (2011) 2 SCC 54, (in paras 25 to 28). When such"
"expressions are used, they may afford an exhaustive"
"explanation of the meaning which for the purpose of the Act,"
must invariably be attached to those words and expressions.
28. Section 2(h) exhausts the categories mentioned
therein. The former part of 2(h) deals with:
(1) an authority or body or institution of self-government
"established by or under the Constitution,"
(2) an authority or body or institution of self-
government established or constituted by any other
"law made by the Parliament,"
(3) an authority or body or institution of self-government
established or constituted by any other law made by
"the State legislature, and"
Page 26
27
(4) an authority or body or institution of self-government
established or constituted by notification issued or
order made by the appropriate government.
"29. Societies, with which we are concerned, admittedly, do"
"not fall in the above mentioned categories, because none of"
"them is either a body or institution of self-government,"
"established or constituted under the Constitution, by law"
"made by the Parliament, by law made by the State"
Legislature or by way of a notification issued or made by the
appropriate government. Let us now examine whether they
"fall in the later part of Section 2(h) of the Act, which"
embraces within its fold:
"(5) a body owned, controlled or substantially financed,"
directly or indirectly by funds provided by the
"appropriate government,"
(6) non-governmental organizations substantially financed
directly or indirectly by funds provided by the
appropriate government.
30 The expression ‘Appropriate Government’ has also
"been defined under Section 2(a) of the RTI Act, which reads"
as follows :
Page 27
28
“2(a). “appropriate Government” means in
relation to a public authority which is
"established, constituted, owned, controlled"
or substantially financed by funds provided
directly or indirectly-
(i) by the Central Government or the
"Union territory administration, the"
Central Government;
"(ii) by the State Government, the State"
Government.”
"31. The RTI Act, therefore, deals with bodies which are"
"owned, controlled or substantially financed, directly or"
"indirectly, by funds provided by the appropriate government"
and also non-government organizations substantially
"financed, directly or indirectly, by funds provided by the"
"appropriate government, in the event of which they may fall"
within the definition of Section 2(h)(d)(i) or (ii) respectively.
"As already pointed out, a body, institution or an organization,"
which is neither a State within the meaning of Article 12 of
"the Constitution or instrumentalities, may still answer the"
definition of public authority under Section 2(h)d (i) or (ii).
(a) Body owned by the appropriate government – A
body owned by the appropriate government clearly falls
"under Section 2(h)(d)(i) of the Act. A body owned, means to"
Page 28
29
have a good legal title to it having the ultimate control over
"the affairs of that body, ownership takes in its fold control,"
finance etc. Further discussion of this concept is
"unnecessary because, admittedly, the societies in question"
are not owned by the appropriate government.
(b) Body Controlled by the Appropriate Government
A body which is controlled by the appropriate
government can fall under the definition of public authority
under Section 2h(d)(i). Let us examine the meaning of the
expression “controlled” in the context of RTI Act and not in
the context of the expression “controlled” judicially
interpreted while examining the scope of the expression
“State” under Article 12 of the Constitution or in the context
of maintainability of a writ against a body or authority under
Article 226 of the Constitution of India. The word
"“control” or “controlled” has not been defined in the RTI Act,"
"and hence, we have to understand the scope of the"
expression ‘controlled’ in the context of the words which
exist prior and subsequent i.e. “body owned” and
Page 29
30
“substantially financed” respectively. The meaning of the
word “control” has come up for consideration in several
cases before this Court in different contexts. In State of
"West Bengal and another v. Nripendra Nath Bagchi,"
AIR 1966 SC 447 while interpreting the scope of Article 235
"of the Constitution of India, which confers control by the"
"High Court over District Courts, this Court held that the word"
“control” includes the power to take disciplinary action and
all other incidental or consequential steps to effectuate this
end and made the following observations :
"“The word ‘control’, as we have seen, was used for"
the first time in the Constitution and it is
accompanied by the word ‘vest’ which is a strong
word. It shows that the High Court is made the
sole custodian of the control over the judiciary.
"Control, therefore, is not merely the power to"
arrange the day to day working of the court but
contemplates disciplinary jurisdiction over the
"presiding Judge.... In our judgment, the control"
which is vested in the High Court is a complete
control subject only to the power of the Governor
in the matter of appointment (including dismissal
and removal) and posting and promotion of
District Judges. Within the exercise of the control
"vested in the High Court, the High Court can hold"
"enquiries, impose punishments other than"
"dismissal or removal, ...”"
Page 30
31
32. The above position has been reiterated by this Court in
Chief Justice of Andhra Pradesh and others v. L.V.A.
Dixitulu and others (1979) 2 SCC 34. In Corporation of
"the City of Nagpur Civil Lines, Nagpur and another v."
"Ramchandra and others (1981) 2 SCC 714, while"
interpreting the provisions of Section 59(3) of the City of
"Nagpur Corporation Act, 1948, this Court held as follows :"
“4. It is thus now settled by this Court that the
term “control” is of a very wide connotation and
amplitude and includes a large variety of powers
which are incidental or consequential to achieve
the powers-vested in the authority
concerned…….”
33. The word “control” is also sometimes used synonyms
"with superintendence, management or authority to direct,"
restrict or regulate by a superior authority in exercise of its
supervisory power. This Court in The Shamrao Vithal Co-
operative Bank Ltd. v. Kasargode Pandhuranga
"Mallya (1972) 4 SCC 600, held that the word “control” does"
not comprehend within itself the adjudication of a claim
made by a co-operative society against its members. The
Page 31
32
meaning of the word “control” has also been considered by
this Court in State of Mysore v. Allum Karibasappa &
"Ors. (1974) 2 SCC 498, while interpreting Section 54 of the"
"Mysore Cooperative Societies Act, 1959 and Court held that"
"the word “control” suggests check, restraint or influence and"
intended to regulate and hold in check and restraint from
action. The expression “control” again came up for
consideration before this Court in Madan Mohan
"Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in"
the context of Article 235 of the Constitution and the Court
held that the expression “control” includes disciplinary
"control, transfer, promotion, confirmation, including transfer"
of a District Judge or recall of a District Judge posted on ex-
cadre post or on deputation or on administrative post etc. so
also premature and compulsory retirement. Reference may
also be made to few other judgments of this Court reported
in Gauhati High Court and another v. Kuladhar Phukan
"and another (2002) 4 SCC 524, State of Haryana v."
"Inder Prakash Anand HCS and others (1976) 2 SCC 977,"
High Court of Judicature for Rajasthan v. Ramesh
Page 32
33
"Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya"
"Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628,"
TMA Pai Foundation and others v. State of Karnataka
"(2002) 8 SCC 481, Ram Singh and others v. Union"
"Territory, Chandigarh and others (2004) 1 SCC 126, etc."
34. We are of the opinion that when we test the meaning of
expression “controlled” which figures in between the words
"“body owned” and “substantially financed”, the control by"
the appropriate government must be a control of a
substantial nature. The mere ‘supervision’ or ‘regulation’ as
such by a statute or otherwise of a body would not make
that body a “public authority” within the meaning of Section
2(h)(d)(i) of the RTI Act. In other words just like a body
owned or body substantially financed by the appropriate
"government, the control of the body by the appropriate"
government would also be substantial and not merely
supervisory or regulatory. Powers exercised by the Registrar
of Cooperative Societies and others under the Cooperative
"Societies Act are only regulatory or supervisory in nature,"
Page 33
34
which will not amount to dominating or interfering with the
management or affairs of the society so as to be controlled.
Management and control are statutorily conferred on the
Management Committee or the Board of Directors of the
Society by the respective Cooperative Societies Act and not
on the authorities under the Co-operative Societies Act.
"35. We are, therefore, of the view that the word"
“controlled” used in Section 2(h)(d)(i) of the Act has to be
understood in the context in which it has been used vis-a-vis
a body owned or substantially financed by the appropriate
"government, that is the control of the body is of such a"
degree which amounts to substantial control over the
management and affairs of the body.
SUBSTANTIALLY FINANCED
36. The words “substantially financed” have been used in
"Sections 2(h)(d)(i) & (ii), while defining the expression public"
Page 34
35
"authority as well as in Section 2(a) of the Act, while defining"
the expression “appropriate Government”. A body can be
"substantially financed, directly or indirectly by funds"
provided by the appropriate Government. The expression
"“substantially financed”, as such, has not been defined"
under the Act. “Substantial” means “in a substantial
manner so as to be substantial”. In Palser v. Grimling
"(1948) 1 All ER 1, 11 (HL), while interpreting the provisions"
of Section 10(1) of the Rent and Mortgage Interest
"Restrictions Act, 1923, the House of Lords held that"
“substantial” is not the same as “not unsubstantial” i.e. just
enough to avoid the de minimis principle. The word
"“substantial” literally means solid, massive etc. Legislature"
has used the expression “substantially financed” in Sections
2(h)(d)(i) and (ii) indicating that the degree of financing must
"be actual, existing, positive and real to a substantial extent,"
"not moderate, ordinary, tolerable etc."
37. We often use the expressions “questions of law” and
“substantial questions of law” and explain that any question
Page 35
36
of law affecting the right of parties would not by itself be a
substantial question of law. In Black's Law Dictionary
"(6th Edn.), the word 'substantial' is defined as 'of real worth"
and importance; of considerable value; valuable. Belonging
to substance; actually existing; real: not seeming or
imaginary; not illusive; solid; true; veritable. Something
worthwhile as distinguished from something without value or
merely nominal. Synonymous with material.' The word
'substantially' has been defined to mean 'essentially; without
material qualification; in the main; in substance; materially.'
"In the Shorter Oxford English Dictionary (5th Edn.), the word"
'substantial' means 'of ample or considerable amount of size;
"sizeable, fairly large; having solid worth or value, of real"
"significance; sold; weighty; important, worthwhile; of an act,"
"measure etc. having force or effect, effective, thorough.' The"
word 'substantially' has been defined to mean 'in substance;
"as a substantial thing or being; essentially, intrinsically.'"
Therefore the word 'substantial' is not synonymous with
'dominant' or 'majority'. It is closer to 'material' or
'important' or 'of considerable value.' 'Substantially' is closer
Page 36
37
to 'essentially'. Both words can signify varying degrees
depending on the context.
"38. Merely providing subsidiaries, grants, exemptions,"
"privileges etc., as such, cannot be said to be providing"
"funding to a substantial extent, unless the record shows that"
the funding was so substantial to the body which practically
"runs by such funding and but for such funding, it would"
struggle to exist. The State may also float many schemes
generally for the betterment and welfare of the cooperative
"sector like deposit guarantee scheme, scheme of assistance"
"from NABARD etc., but those facilities or assistance cannot"
be termed as “substantially financed” by the State
Government to bring the body within the fold of “public
"authority” under Section 2(h)(d)(i) of the Act. But, there are"
"instances, where private educational institutions getting"
ninety five per cent grant-in-aid from the appropriate
"government, may answer the definition of public authority"
under Section 2(h)(d)(i).
Page 37
38
NON-GOVERNMENT ORGANISATIONS:
"39. The term “Non-Government Organizations” (NGO), as"
"such, is not defined under the Act. But, over a period of"
"time, the expression has got its own meaning and, it has to"
"be seen in that context, when used in the Act. Government"
"used to finance substantially, several non-government"
"organizations, which carry on various social and welfare"
"activities, since those organizations sometimes carry on"
"functions which are otherwise governmental. Now, the"
"question, whether an NGO has been substantially financed or"
"not by the appropriate Government, may be a question of"
"fact, to be examined by the authorities concerned under the"
RTI Act. Such organization can be substantially financed
either directly or indirectly by funds provided by the
appropriate Government. Government may not have any
"statutory control over the NGOs, as such, still it can be"
established that a particular NGO has been substantially
financed directly or indirectly by the funds provided by the
"appropriate Government, in such an event, that organization"
Page 38
39
will fall within the scope of Section 2(h)(d)(ii) of the RTI Act.
"Consequently, even private organizations which are, though"
not owned or controlled but substantially financed by the
appropriate Government will also fall within the definition of
“public authority” under Section 2(h)(d)(ii) of the Act.
BURDEN TO SHOW:
"40. The burden to show that a body is owned, controlled or"
substantially financed or that a non-government
organization is substantially financed directly or indirectly by
the funds provided by the appropriate Government is on the
applicant who seeks information or the appropriate
Government and can be examined by the State Information
Commission or the Central Information Commission as the
"case may be, when the question comes up for consideration."
"A body or NGO is also free to establish that it is not owned,"
controlled or substantially financed directly or indirectly by
the appropriate Government.
Page 39
40
41. Powers have been conferred on the Central Information
Commissioner or the State Information Commissioner under
Section 18 of the Act to inquire into any complaint received
from any person and the reason for the refusal to access to
"any information requested from a body owned, controlled or"
"substantially financed, or a non-government organization"
substantially financed directly or indirectly by the funds
provided by the appropriate Government. Section 19 of the
Act provides for an appeal against the decision of the Central
Information Officer or the State Information Officer to such
officer who is senior in rank to the Central Information
"Officer or the State Information Officer, as the case may be,"
"in each public authority. Therefore, there is inbuilt"
mechanism in the Act itself to examine whether a body is
"owned, controlled or substantially financed or an NGO is"
"substantially financed, directly or indirectly, by funds"
provided by the appropriate authority.
42. Legislative intention is clear and is discernible from
"Section 2(h) that intends to include various categories,"
Page 40
41
discussed earlier. It is trite law that the primarily language
employed is the determinative factor of the legislative
intention and the intention of the legislature must be found
in the words used by the legislature itself. In Magor and
St. Mellons Rural District Council v. New Port
Corporation (1951) 2 All ER 839(HL) stated that the courts
are warned that they are not entitled to usurp the legislative
function under the guise of interpretation. This Court in
D.A. Venkatachalam and others v. Dy. Transport
"Commissioner and others (1977) 2 SCC 273, Union of"
India v. Elphinstone Spinning and Weaving Co. Ltd.
"and others (2001) 4 SCC 139, District Mining Officer"
and others v. Tata Iron & Steel Co. and another (2001)
"7 SCC 358, Padma Sundara Rao (Dead) and others v."
"State of Tamil Nadu and others (2002) 3 SCC 533,"
Maulvi Hussain Haji Abraham Umarji v. State of
Gujarat and another (2004) 6 SCC 672 held that the court
must avoid the danger of an apriori determination of the
meaning of a provision based on their own preconceived
notions of ideological structure or scheme into which the
Page 41
42
provisions to be interpreted is somehow fitted. It is trite law
"that words of a statute are clear, plain and unambiguous i.e."
"they are reasonably susceptible to only one meaning, the"
courts are bound to give effect to that meaning irrespective
"of the consequences, meaning thereby when the language is"
"clear and unambiguous and admits of only one meaning, no"
"question of construction of a statute arises, for the statute"
speaks for itself. This Court in Kanai Lal Sur v.
Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the
words used are capable of one construction only then it
would not be open to courts to adopt any other hypothetical
construction on the ground that such construction is more
consistent with the alleged object and policy of the Act.”
43. We are of the view that the High Court has given a
complete go-bye to the above-mentioned statutory
principles and gone at a tangent by mis-interpreting the
meaning and content of Section 2(h) of the RTI Act. Court
has given a liberal construction to expression “public
"authority” under Section 2(h) of the Act, bearing in mind the"
Page 42
43
“transformation of law” and its “ultimate object” i.e. to
"achieve “transparency and accountability”, which according"
to the court could alone advance the objective of the Act.
"Further, the High Court has also opined that RTI Act will"
certainly help as a protection against the mismanagement of
the society by the managing committee and the society’s
liabilities and that vigilant members of the public body by
"obtaining information through the RTI Act, will be able to"
"detect and prevent mismanagement in time. In our view,"
the categories mentioned in Section 2(h) of the Act exhaust
"themselves, hence, there is no question of adopting a liberal"
construction to the expression “public authority” to bring in
"other categories into its fold, which do not satisfy the tests"
"we have laid down. Court cannot, when language is clear"
"and unambiguous, adopt such a construction which,"
"according to the Court, would only advance the objective of"
the Act. We are also aware of the opening part of the
definition clause which states “unless the context otherwise
requires”. No materials have been made available to show
"that the cooperative societies, with which we are concerned,"
Page 43
44
"in the context of the Act, would fall within the definition of"
Section 2(h) of the Act.
Right to Information and the Right to Privacy
44. People’s right to have access to an official information
finds place in Resolution 59(1) of the UN General Assembly
held in 1946. It states that freedom of information is a
fundamental human right and the touchstone to all the
freedoms to which the United Nations is consecrated. India
is a party to the International Covenant on Civil and Political
Rights and hence India is under an obligation to effectively
guarantee the right to information. Article 19 of the
Universal Declaration of Human Rights also recognizes right
to information. Right to information also emanates from the
fundamental right guaranteed to citizens under Article 19(1)
(a) of the Constitution of India. Constitution of India does not
explicitly grant a right to information. In Bennet Coleman
& Co. and others Vs. Union of India and others (1972)
"2 SCC 788, this Court observed that it is indisputable that by"
"“Freedom of Press” meant the right of all citizens to speak,"
Page 44
45
publish and express their views and freedom of speech and
expression includes within its compass the right of all
citizens to read and be informed. In Union of India Vs.
Association of Democratic Reforms and another (2002)
"5 SCC 294, this Court held that the right to know about the"
antecedents including criminal past of the candidates
contesting the election for Parliament and State Assembly is
a very important and basic facets for survival of democracy
"and for this purpose, information about the candidates to be"
selected must be disclosed. In State of U.P. Vs. Raj
"Narain and others (1975) 4 SCC 428, this Court recognized"
that the right to know is the right that flows from the right of
freedom of speech and expression guaranteed under Article
19(1)(a) of the Constitution. In People’s Union for Civil
Liberties (PUCL) and others Vs. Union of India and
"another (2003) 4 SCC 399, this Court observed that the"
right to information is a facet of freedom of speech and
expression contained in Article 19(1)(a) of the Constitution of
India. Right to information thus indisputably is a
Page 45
46
"fundamental right, so held in several judgments of this"
"Court, which calls for no further elucidation."
"45. The Right to Information Act, 2005 is an Act which"
provides for setting up the practical regime of right to
information for citizens to secure access to information
under the control of public authorities in order to promote
transparency and accountability in the working of every
public authority. Preamble of the Act also states that the
democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to
contain corruption and to hold Governments and their
instrumentalities accountable to the governed. Citizens
"have, however, the right to secure access to information of"
only those matters which are “under the control of public
"authorities”, the purpose is to hold “Government and its"
instrumentalities” accountable to the governed.
"Consequently, though right to get information is a"
fundamental right guaranteed under Article 19(1)(a) of the
"Constitution, limits are being prescribed under the Act itself,"
Page 46
47
which are reasonable restrictions within the meaning of
Article 19(2) of the Constitution of India.
46. Right to privacy is also not expressly guaranteed under
"the Constitution of India. However, the Privacy Bill, 2011 to"
provide for the right to privacy to citizens of India and to
"regulate the collection, maintenance and dissemination of"
their personal information and for penalization for violation
"of such rights and matters connected therewith, is pending."
In several judgments including Kharak Singh Vs. State of
"U.P. and others AIR 1963 SC 1295, R. Rajagopal alias"
R.R. Gopal and another Vs. State of Tamil Nadu and
"others (1994) 6 SCC 632, People’s Union for Civil"
Liberties (PUCL) Vs. Union of India and another (1997)
1 SCC 301 and State of Maharashtra Vs. Bharat Shanti
"Lal Shah and others (2008) 13 SCC 5, this Court has"
recognized the right to privacy as a fundamental right
emanating from Article 21 of the Constitution of India. Right
to privacy is also recognized as a basic human right under
Page 47
48
"Article 12 of the Universal Declaration of Human Rights Act,"
"1948, which states as follows:"
“No one shall be subjected to arbitrary
"interference with his privacy, family, home or"
"correspondence, not to attack upon his honour"
and reputation. Everyone has the right to the
protection of law against such interference or
attacks.”
Article 17 of the International Covenant on Civil and Political
"Rights Act, 1966, to which India is a party also protects that"
right and states as follows:
“No one shall be subjected to arbitrary or unlawful
"interference with his privacy, family, home and"
correspondence nor to unlawful attacks on his
honour and reputation….”
This Court in R. Rajagopal (supra) held as follows :-
“The right to privacy is implicit in the right to life
and liberty guaranteed to the citizens of this
country by Article 21. It is a “right to be let
alone”. A citizen has a right to safeguard the
"privacy of his own, his family, marriage,"
"procreation, motherhood, child bearing and"
education among other matters.”
Page 48
49
Restrictions and Limitations:
"47. Right to information and Right to privacy are, therefore,"
"not absolute rights, both the rights, one of which falls under"
Article 19(1)(a) and the other under Article 21 of the
"Constitution of India, can obviously be regulated, restricted"
and curtailed in the larger public interest. Absolute or
uncontrolled individual rights do not and cannot exist in any
modern State. Citizens’ right to get information is statutorily
"recognized by the RTI Act, but at the same time limitations"
"are also provided in the Act itself, which is discernible from"
"the Preamble and other provisions of the Act. First of all, the"
scope and ambit of the expression “public authority” has
been restricted by a statutory definition under Section 2(h)
limiting it to the categories mentioned therein which exhaust
"itself, unless the context otherwise requires. Citizens, as"
"already indicated by us, have a right to get information, but"
can have access only to the information “held” and under
"the “control of public authorities”, with limitations. If the"
Page 49
50
"information is not statutorily accessible by a public authority,"
"as defined in Section 2(h) of the Act, evidently, those"
information will not be under the “control of the public
"authority”. Resultantly, it will not be possible for the citizens"
to secure access to those information which are not under
"the control of the public authority. Citizens, in that event,"
"can always claim a right to privacy, the right of a citizen to"
"access information should be respected, so also a citizen’s"
right to privacy.
48. Public authority also is not legally obliged to give or
"provide information even if it is held, or under its control, if"
that information falls under clause (j) of Sub-section (1) of
Section 8. Section 8(1)(j) is of considerable importance so
"far as this case is concerned, hence given below, for ready"
reference:-
“8. Exemption from disclosure of
information – (1) Notwithstanding anything
"contained in this Act, there shall be no obligation"
to give any citizen –
(a) to (i) xxx xxx xxx
Page 50
51
(j) information which relates to personal
information the disclosure of which has no
"relationship to any public activity or interest, or"
which would cause unwarranted invasion of the
privacy of the individual unless the Central Public
Information Officer or the State Public Information
"Officer or the appellate authority, as the case may"
"be, is satisfied that the larger public interest"
justifies the disclosure of such information:
Provided that the information which cannot be
denied to the Parliament or a State Legislature
shall not be denied to any person.”
"49. Section 8 begins with a non obstante clause, which"
"gives that Section an overriding effect, in case of conflict,"
"over the other provisions of the Act. Even if, there is any"
"indication to the contrary, still there is no obligation on the"
public authority to give information to any citizen of what
"has been mentioned in clauses (a) to (j). Public authority,"
"as already indicated, cannot access all the information from"
"a private individual, but only those information which he is"
"legally obliged to pass on to a public authority by law, and"
also only those information to which the public authority can
have access in accordance with law. Even those
"information, if personal in nature, can be made available"
only subject to the limitations provided in Section 8(j) of the
Page 51
52
"RTI Act. Right to be left alone, as propounded in Olmstead"
v. The United States reported in 1927 (277) US 438 is the
most comprehensive of the rights and most valued by
civilized man.
50. Recognizing the fact that the right to privacy is a
"sacrosanct facet of Article 21 of the Constitution, the"
legislation has put a lot of safeguards to protect the rights
"under Section 8(j), as already indicated. If the information"
sought for is personal and has no relationship with any
public activity or interest or it will not sub-serve larger public
"interest, the public authority or the officer concerned is not"
legally obliged to provide those information. Reference may
be made to a recent judgment of this Court in Girish
Ramchandra Deshpande v. Central Information
"Commissioner and others (2013) 1 SCC 212, wherein this"
Court held that since there is no bona fide public interest in
"seeking information, the disclosure of said information would"
cause unwarranted invasion of privacy of the individual
"under Section 8(1)(j) of the Act. Further, if the authority"
Page 52
53
finds that information sought for can be made available in
"the larger public interest, then the officer should record his"
"reasons in writing before providing the information, because"
"the person from whom information is sought for, has also a"
right to privacy guaranteed under Article 21 of the
Constitution.
"51. We have found, on facts, that the Societies, in these"
"appeals, are not public authorities and, hence, not legally"
obliged to furnish any information sought for by a citizen
"under the RTI Act. All the same, if there is any dispute on"
facts as to whether a particular Society is a public authority
"or not, the State Information Commission can examine the"
same and find out whether the Society in question satisfies
"the test laid in this judgment. Now, the next question is"
whether a citizen can have access to any information of
these Societies through the Registrar of Cooperative
"Societies, who is a public authority within the meaning of"
Section 2(h) of the Act.
Registrar of Cooperative Societies
Page 53
54
52. Registrar of Cooperative Societies functioning under the
Cooperative Societies Act is a public authority within the
"meaning of Section 2(h) of the Act. As a public authority,"
Registrar of Co-operative Societies has been conferred with
lot of statutory powers under the respective Act under which
he is functioning. He is also duty bound to comply with the
obligations under the RTI Act and furnish information to a
citizen under the RTI Act. Information which he is expected
to provide is the information enumerated in Section 2(f) of
the RTI Act subject to the limitations provided under Section
"8 of the Act. Registrar can also, to the extent law permits,"
"gather information from a Society, on which he has"
supervisory or administrative control under the Cooperative
"Societies Act. Consequently, apart from the information as is"
"available to him, under Section 2(f), he can also gather those"
"information from the Society, to the extent permitted by law."
Registrar is also not obliged to disclose those information if
those information fall under Section 8(1)(j) of the Act. No
"provision has been brought to our knowledge indicating that,"
Page 54
55
"under the Cooperative Societies Act, a Registrar can call for"
the details of the bank accounts maintained by the citizens
or members in a cooperative bank. Only those information
which a Registrar of Cooperative Societies can have access
under the Cooperative Societies Act from a Society could be
said to be the information which is “held” or “under the
"control of public authority”. Even those information,"
"Registrar, as already indicated, is not legally obliged to"
provide if those information falls under the exempted
category mentioned in Section 8(j) of the Act. Apart from
"the Registrar of Co-operative Societies, there may be other"
public authorities who can access information from a Co-
operative Bank of a private account maintained by a
"member of Society under law, in the event of which, in a"
"given situation, the society will have to part with that"
information. But the demand should have statutory backing.
"53. Consequently, an information which has been sought"
"for relates to personal information, the disclosure of which"
has no relationship to any public activity or interest or which
Page 55
56
would cause unwarranted invasion of the privacy of the
"individual, the Registrar of Cooperative Societies, even if he"
"has got that information, is not bound to furnish the same to"
"an applicant, unless he is satisfied that the larger public"
"interest justifies the disclosure of such information, that too,"
for reasons to be recorded in writing.
"54. We, therefore, hold that the Cooperative Societies"
registered under the Kerala Co-operative Societies Act will
not fall within the definition of “public authority” as defined
under Section 2(h) of the RTI Act and the State Government
letter dated 5.5.2006 and the circular dated 01.06.2006
"issued by the Registrar of Co-operative Societies, Kerala, to"
"the extent, made applicable to societies registered under the"
Kerala Co-operative Societies Act would stand quashed in
"the absence of materials to show that they are owned,"
controlled or substantially financed by the appropriate
"Government. Appeals are, therefore, allowed as above,"
"however, with no order as to costs."
Page 56
57
………..………………….J.
(K.S. Radhakrishnan)
……………………………J.
(A.K. Sikri)
"New Delhi,"
"October 07, 2013"
Page 57
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.22 OF 2009
Canara Bank Rep. by
its Deputy Gen. Manager ….Appellant(s)
VERSUS
C.S. Shyam & Anr. …Respondent(s)
J U D G M E N T
"Abhay Manohar Sapre, J."
1) This appeal is filed against the final judgment
and order dated 20.09.2007 passed by the High
Court of Kerala at Ernakulam in Writ Appeal No.
2100 of 2007 whereby the High Court disposed of
the writ appeal filed by the appellant herein and
upheld the judgment passed by the Single Judge
dismissing the writ petition filed by the appellant
1
herein challenging the order of the Central
Information Commission holding that the appellant
must provide the information sought by respondent
"No.1 herein under the Right to Information Act,"
2005 (hereinafter referred to as “the Act”).
2) Few relevant facts need mention to appreciate
the controversy involved in appeal.
3) The appellant herein is a nationalized Bank. It
has a branch in District Malappuram in the State of
"Kerala. Respondent No. 1, at the relevant time, was"
working in the said Branch as a clerical staff.
"4) On 01.08.2006, respondent No.1 submitted an"
application to the Public Information Officer of the
appellant-Bank under Section 6 of the Act and
sought information regarding transfer and posting
of the entire clerical staff from 01.01.2002 to
31.07.2006 in all the branches of the
appellant-Bank.
2
5) The information was sought on 15 parameters
with regard to various aspects of transfers of clerical
staff and staff of the Bank with regard to individual
employees. This information was in relation to the
personal details of individual employee such as the
"date of his/her joining, designation, details of"
"promotion earned, date of his/her joining to the"
"Branch where he/she is posted, the authorities who"
issued the transfer orders etc. etc.
"6) On 29.08.2006, the Public Information Officer"
of the Bank expressed his inability to furnish the
"details sought by respondent No. 1 as, in his view,"
"firstly, the information sought was protected from"
being disclosed under Section 8(1)(j) of the Act and
"secondly, it had no nexus with any public interest"
or activity.
"7) Respondent No.1, felt aggrieved, filed appeal"
before the Chief Public Information Officer. By
3
"order dated 30.09.2006, the Chief Public"
Information Officer agreeing with the view taken by
the Public Information Officer dismissed the appeal
and affirmed the order of the Public Information
Officer.
"8) Felt aggrieved, respondent No.1 carried the"
matter in further appeal before the Central
Information Commission. By order dated
"26.02.2007, the appeal was allowed and accordingly"
directions were issued to the Bank to furnish the
information sought by respondent No.1 in his
application.
"9) Against the said order, the appellant-Bank"
filed writ petition before the High Court. The Single
Judge of the High Court dismissed the writ petition
filed by the appellant-Bank. Challenging the said
"order, the appellant-Bank filed writ appeal before"
the High Court.
4
"10) By impugned order, the Division Bench of the"
High Court dismissed the appellant's writ appeal
and affirmed the order of the Central Information
"Commission, which has given rise to filing of this"
appeal.
11) Having heard the learned counsel for the
"appellant and on perusal of the record of the case,"
"we are inclined to allow the appeal, set aside the"
impugned order and dismiss the application
submitted by the 1st respondent under Section 6 of
the Act.
"12) In our considered opinion, the issue involved"
herein remains no more res integra and stands
settled by two decisions of this Court in Girish
Ramchandra Deshpande vs. Central Information
"Commissioner & Ors., (2013) 1 SCC 212 and R.K."
"Jain vs. Union of India & Anr., (2013) 14 SCC 794,"
5
it may not be necessary to re-examine any legal
issue urged in this appeal.
13) In Girish Ramchandra Deshpande's case
"(supra), the petitioner therein (Girish) had sought"
some personal information of one employee working
in Sub Regional Office (provident fund) Akola. All
"the authorities, exercising their respective powers"
"under the Act, declined the prayer for furnishing the"
information sought by the petitioner. The High
Court in writ petition filed by the petitioner upheld
"the orders. Aggrieved by all the order, he filed"
special leave to appeal in this Court. Their
Lordships dismissed the appeal and upholding the
orders passed by the High Court held as under:-
“12. We are in agreement with the CIC and
the courts below that the details called for by
the petitioner i.e. copies of all memos issued
"to the third respondent, show-cause notices"
"and orders of censure/punishment, etc. are"
qualified to be personal information as
defined in clause (j) of Section 8(1) of the RTI
Act. The performance of an employee/officer
in an organisation is primarily a matter
6
between the employee and the employer and
normally those aspects are governed by the
service rules which fall under the expression
"“personal information”, the disclosure of"
which has no relationship to any public
"activity or public interest. On the other hand,"
the disclosure of which would cause
unwarranted invasion of privacy of that
"individual. Of course, in a given case, if the"
Central Public Information Officer or the
State Public Information Officer or the
appellate authority is satisfied that the larger
public interest justifies the disclosure of such
"information, appropriate orders could be"
passed but the petitioner cannot claim those
details as a matter of right.
13. The details disclosed by a person in his
income tax returns are “personal
information” which stand exempted from
disclosure under clause (j) of Section 8(1) of
"the RTI Act, unless involves a larger public"
interest and the Central Public Information
Officer or the State Public Information
Officer or the appellate authority is satisfied
that the larger public interest justifies the
disclosure of such information.”
"14) In our considered opinion, the aforementioned"
principle of law applies to the facts of this case on
"all force. It is for the reasons that, firstly, the"
information sought by respondent No.1 of individual
employees working in the Bank was personal in
"nature; secondly, it was exempted from being"
7
"disclosed under Section 8(j) of the Act and lastly,"
neither respondent No.1 disclosed any public
interest much less larger public interest involved in
seeking such information of the individual employee
and nor any finding was recorded by the Central
Information Commission and the High Court as to
the involvement of any larger public interest in
supplying such information to respondent No.1.
"15) It is for these reasons, we are of the considered"
view that the application made by respondent No.1
under Section 6 of the Act was wholly misconceived
"and was, therefore, rightly rejected by the Public"
Information Officer and Chief Public Information
Officer whereas wrongly allowed by the Central
Information Commission and the High Court.
"16) In this view of the matter, we allow the appeal,"
set aside the order of the High Court and Central
Information Commission and restore the orders
8
passed by the Public Information Officer and the
"Chief Public Information Officer. As a result, the"
application submitted by respondent No.1 to the
appellant-Bank dated 01.08.2006 (Annexure-P-1)
stands rejected.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
"August 31, 2017"
9
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO.6454 OF 2011
[Arising out of SLP [C] No.7526/2009]
Central Board of Secondary Education & Anr. … Appellants
Vs.
Aditya Bandopadhyay & Ors. … Respondents
With
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)
J U D G M E N T
"R.V.RAVEENDRAN, J."
"Leave granted. For convenience, we will refer to the facts of the first"
case.
"2. The first respondent appeared for the Secondary School Examination,"
2008 conducted by the Central Board of Secondary Education (for short
2
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed
with his marks. He thought that he had done well in the examination but his
answer-books were not properly valued and that improper valuation had
resulted in low marks. Therefore he made an application for inspection and
re-evaluation of his answer-books. CBSE rejected the said request by letter
dated 12.7.2008. The reasons for rejection were:
(i) The information sought was exempted under Section 8(1)(e) of RTI
Act since CBSE shared fiduciary relationship with its evaluators and
maintain confidentiality of both manner and method of evaluation.
(ii) The Examination Bye-laws of the Board provided that no candidate
shall claim or is entitled to re-evaluation of his answers or disclosure
or inspection of answer book(s) or other documents.
(iii) The larger public interest does not warrant the disclosure of such
information sought.
"(iv) The Central Information Commission, by its order dated 23.4.2007 in"
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such
disclosure.”
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008
before the Calcutta High Court and sought the following reliefs : (a) for a
declaration that the action of CBSE in excluding the provision of re-
"evaluation of answer-sheets, in regard to the examinations held by it was"
"illegal, unreasonable and violative of the provisions of the Constitution of"
3
India; (b) for a direction to CBSE to appoint an independent examiner for re-
evaluating his answer-books and issue a fresh marks card on the basis of re-
evaluation; (c) for a direction to CBSE to produce his answer-books in
regard to the 2008 Secondary School Examination so that they could be
properly reviewed and fresh marks card can be issued with re-evaluation
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and
for a direction to produce the answer-books into court for inspection by the
first respondent. The respondent contended that section 8(1)(e) of Right to
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not"
applicable and relied upon the provisions of the RTI Act to claim inspection.
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-"
evaluation and inspection of answer-books were impermissible and what
was permissible was only verification of marks. They relied upon the CBSE
"Examination Bye-law No.61, relevant portions of which are extracted"
below:
“61. Verification of marks obtained by a Candidate in a subject
(i) A candidate who has appeared at an examination conducted by the
Board may apply to the concerned Regional Officer of the Board for
verification of marks in any particular subject. The verification will be
restricted to checking whether all the answer's have been evaluated and
that there has been no mistake in the totalling of marks for each question
in that subject and that the marks have been transferred correctly on the
title page of the answer book and to the award list and whether the
4
supplementary answer book(s) attached with the answer book mentioned
by the candidate are intact. No revaluation of the answer book or
supplementary answer book(s) shall be done.
(ii) Such an application must be made by the candidate within 21 days
from the date of the declaration of result for Main Examination and 15
days for Compartment Examination.
(iii) All such applications must be accompanied by payment of fee as
prescribed by the Board from time to time.
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her"
answers or disclosure or inspection of the answer book(s) or other
documents.
xxxx
(vi) In no case the verification of marks shall be done in the presence of
"the candidate or anyone else on his/her behalf, nor will the answer books"
be shown to him/her or his/her representative.
(vii) Verification of marks obtained by a candidate will be done by the
officials appointed by or with the approval of the Chairman.
"(viii) The marks, on verification will be revised upward or downward, as"
per the actual marks obtained by the candidate in his/her answer book.
xxxx
62. Maintenance of Answer Books
The answer books shall be maintained for a period of three months and
shall thereafter be disposed of in the manner as decided by the Chairman
from time to time.”
(emphasis supplied)
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated
schools across the country appear in class X and class XII examinations
conducted by it and this generates as many as 60 to 65 lakhs of answer-
"books; that as per Examination Bye-law No.62, it maintains the answer"
5
books only for a period of three months after which they are disposed of. It
was submitted that if candidates were to be permitted to seek re-evaluation
"of answer books or inspection thereof, it will create confusion and chaos,"
subjecting its elaborate system of examinations to delay and disarray. It was
"stated that apart from class X and class XII examinations, CBSE also"
conducts several other examinations (including the All India Pre-Medical
"Test, All India Engineering Entrance Examination and Jawahar Navodaya"
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the
answer-books or grant inspection of answer-books or grant certified copies
"thereof, it would interfere with its effective and efficient functioning, and"
will also require huge additional staff and infrastructure. It was submitted
that the entire examination system and evaluation by CBSE is done in a
scientific and systemic manner designed to ensure and safeguard the high
academic standards and at each level utmost care was taken to achieve the
"object of excellence, keeping in view the interests of the students. CBSE"
referred to the following elaborate procedure for evaluation adopted by it :
“The examination papers are set by the teachers with at least 20 years of
teaching experience and proven integrity. Paper setters are normally
appointed from amongst academicians recommended by then Committee
of courses of the Board. Every paper setter is asked to set more than one
set of question papers which are moderated by a team of moderators who
are appointed from the academicians of the University or from amongst
the Senior Principals. The function of the moderation team is to ensure
correctness and consistency of different sets of question papers with the
curriculum and to assess the difficulty level to cater to the students of
6
different schools in different categories. After assessing the papers from
"every point of view, the team of moderators gives a declaration whether"
"the whole syllabus is covered by a set of question papers, whether the"
distribution of difficulty level of all the sets is parallel and various other
aspects to ensure uniform standard. The Board also issues detailed
instructions for the guidance of the moderators in order to ensure uniform
criteria for assessment.
The evaluation system on the whole is well organized and fool-proof. All
the candidates are examined through question papers set by the same
paper setters. Their answer books are marked with fictitious roll numbers
so as to conceal their identity. The work of allotment of fictitious roll
number is carried out by a team working under a Chief Secrecy Officer
having full autonomy. The Chief Secrecy Officer and his team of
assistants are academicians drawn from the Universities and other
autonomous educational bodies not connected with the Board. The Chief
Secrecy Officer himself is usually a person of the rank of a University
professor. No official of the Board at the Central or Regional level is
associated with him in performance of the task assigned to him. The codes
of fictitious roll numbers and their sequences are generated by the Chief
Secrecy Officer himself on the basis of mathematical formula which
randomize the real roll numbers and are known only to him and his team.
This ensures complete secrecy about the identification of the answer book
"so much so, that even the Chairman, of the Board and the Controller of"
Examination of the Board do not have any information regarding the
fictitious roll numbers granted by the Chief Secrecy Officer and their real
counterpart numbers.
"At the evaluation stage, the Board ensures complete fairness and"
uniformity by providing a marking scheme which is uniformity applicable
to all the examiners in order to eliminate the chances of subjectivity.
These marking schemes are jointly prepared at the Headquarters of the
Board in Delhi by the Subject Experts of all the regions. The main purpose
of the marking scheme is to maintain uniformity in the evaluation of the
answer books.
The evaluation of the answer books in all major subjects including
"mathematics, science subjects is done in centralized “on the spot”"
evaluation centers where the examiners get answer book in interrupted
"serial orders. Also, the answer books are jumbled together as a result of"
"which the examiners, say in Bangalore may be marking the answer book"
"of a candidate who had his examination in Pondicherry, Goa, Andaman"
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka"
itself but he has no way of knowing exactly which answer book he is
examining. The answer books having been marked with fictitious roll
numbers give no clue to any examiner about the state or territory it
7
belongs to. It cannot give any clue about the candidate’s school or centre
of examination. The examiner cannot have any inclination to do any
favour to a candidate because he is unable to decodify his roll number or
"to know as to which school, place or state or territory he belongs to."
The examiners check all the questions in the papers thoroughly under the
supervision of head examiner and award marks to the sub parts
individually not collectively. They take full precautions and due attention
is given while assessing an answer book to do justice to the candidate. Re-
evaluation is administratively impossible to be allowed in a Board where
lakhs of students take examination in multiple subjects.
There are strict instructions to the additional head examiners not to allow
any shoddy work in evaluation and not to issue more than 20-25 answer
books for evaluation to an examiner on a single day. The examiners are
practicing teachers who guard the interest of the candidates. There is no
ground to believe that they do unjust marking and deny the candidates
their due. It is true that in some cases totaling errors have been detected at
the stage of scrutiny or verification of marks. In order to minimize such
"errors and to further strengthen and to improve its system, from 1993"
checking of totals and other aspects of the answers has been trebled in
order to detect and eliminate all lurking errors.
The results of all the candidates are reviewed by the Results Committee
functioning at the Head Quarters. The Regional Officers are not the
number of this Committee. This Committee reviews the results of all the
regions and in case it decides to standardize the results in view of the
"results shown by the regions over the previous years, it adopts a uniform"
policy for the candidates of all the regions. No special policy is adopted
"for any region, unless there are some special reasons. This practice of"
awarding standardized marks in order to moderate the overall results is a
practice common to most of the Boards of Secondary Education. The
exact number of marks awarded for the purpose of standardization in
different subjects varies from year to year. The system is extremely
impersonalized and has no room for collusion infringement. It is in a word
a scientific system.”
CBSE submitted that the procedure evolved and adopted by it ensures
fairness and accuracy in evaluation of answer-books and made the entire
process as foolproof as possible and therefore denial of re-evaluation or
8
inspection or grant of copies cannot be considered to be denial of fair play or
unreasonable restriction on the rights of the students.
5. A Division Bench of the High Court heard and disposed of the said
writ petition along with the connected writ petitions (relied by West Bengal
Board of Secondary Education and others) by a common judgment dated
5.2.2009. The High Court held that the evaluated answer-books of an
examinee writing a public examination conducted by statutory bodies like
"CBSE or any University or Board of Secondary Education, being a"
"‘document, manuscript record, and opinion’ fell within the definition of"
“information” as defined in section 2(f) of the RTI Act. It held that the
provisions of the RTI Act should be interpreted in a manner which would
lead towards dissemination of information rather than withholding the same;
"and in view of the right to information, the examining bodies were bound to"
provide inspection of evaluated answer books to the examinees.
Consequently it directed CBSE to grant inspection of the answer books to
the examinees who sought information. The High Court however rejected
"the prayer made by the examinees for re-evaluation of the answer-books, as"
that was not a relief that was available under RTI Act. RTI Act only
"provided a right to access information, but not for any consequential reliefs."
9
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this"
appeal by special leave.
6. Before us the CBSE contended that the High Court erred in (i)
"directing CBSE to permit inspection of the evaluated answer books, as that"
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),"
which provided that no candidate shall claim or be entitled to re-evaluation
of answer books or disclosure/inspection of answer books; (ii) holding that
"Bye-law 61(4) was not binding upon the examinees, in view of the"
"overriding effect of the provisions of the RTI Act, even though the validity"
of that bye-law had not been challenged; (iii) not following the decisions of
this court in Maharashtra State Board of Secondary Education vs. Paritosh
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar"
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan"
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC"
"603] and Secretary, West Bengal Council of Higher Secondary Education"
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a
right to inspect his answer book under section 3 of the RTI Act and the
examining bodies like CBSE were not exempted from disclosure of
information under section 8(1)(e) of the RTI Act. The appellants contended
"that they were holding the “information” (in this case, the evaluated answer"
10
books) in a fiduciary relationship and therefore exempted under section
8(1)(e) of the RTI Act.
7. The examinees and the Central Information Commission contended
that the object of the RTI Act is to ensure maximum disclosure of
information and minimum exemptions from disclosure; that an examining
"body does not hold the evaluated answer books, in any fiduciary relationship"
either with the student or the examiner; and that the information sought by
"any examinee by way of inspection of his answer books, will not fall under"
any of the exempted categories of information enumerated in section 8 of the
RTI Act. It was submitted that an examining body being a public authority
"holding the ‘information’, that is, the evaluated answer-books, and the"
inspection of answer-books sought by the examinee being exercise of ‘right
"to information’ as defined under the Act, the examinee as a citizen has the"
right to inspect the answer-books and take certified copies thereof. It was
"also submitted that having regard to section 22 of the RTI Act, the"
provisions of the said Act will have effect notwithstanding anything
"inconsistent in any law and will prevail over any rule, regulation or bye law"
of the examining body barring or prohibiting inspection of answer books.
11
"8. On the contentions urged, the following questions arise for our"
consideration :
(i) Whether an examinee’s right to information under the RTI Act
includes a right to inspect his evaluated answer books in a public
examination or taking certified copies thereof?
(ii) Whether the decisions of this court in Maharashtra State Board of
Secondary Education [1984 (4) SCC 27] and other cases referred to
"above, in any way affect or interfere with the right of an examinee"
seeking inspection of his answer books or seeking certified copies
thereof?
(iii) Whether an examining body holds the evaluated answer books “in a
fiduciary relationship” and consequently has no obligation to give
inspection of the evaluated answer books under section 8 (1)(e) of
RTI Act?
(iv) If the examinee is entitled to inspection of the evaluated answer books
"or seek certified copies thereof, whether such right is subject to any"
"limitations, conditions or safeguards?"
Relevant Legal Provisions
"9. To consider these questions, it is necessary to refer to the statement of"
"objects and reasons, the preamble and the relevant provisions of the RTI"
12
"Act. RTI Act was enacted in order to ensure smoother, greater and more"
effective access to information and provide an effective framework for
effectuating the right of information recognized under article 19 of the
Constitution. The preamble to the Act declares the object sought to be
achieved by the RTI Act thus:
“An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control
"of public authorities, in order to promote transparency and accountability"
"in the working of every public authority, the constitution of a Central"
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to contain
corruption and to hold Governments and their instrumentalities
accountable to the governed;
And whereas revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
"Governments, optimum use of limited fiscal resources and the"
preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while
preserving the paramountcy of the democratic ideal.”
Chapter II of the Act containing sections 3 to 11 deals with right to
information and obligations of public authorities. Section 3 provides for
"right to information and reads thus: “Subject to the provisions of this Act,"
all citizens shall have the right to information.” This section makes it clear
13
"that the RTI Act gives a right to a citizen to only access information, but not"
seek any consequential relief based on such information. Section 4 deals
with obligations of public authorities to maintain the records in the manner
provided and publish and disseminate the information in the manner
provided. Section 6 deals with requests for obtaining information. It
provides that applicant making a request for information shall not be
required to give any reason for requesting the information or any personal
details except those that may be necessary for contacting him. Section 8
deals with exemption from disclosure of information and is extracted in its
entirety:
“8. Exemption from disclosure of information -- (1) Notwithstanding
"anything contained in this Act, there shall be no obligation to give any"
"citizen,-"
"(a) information, disclosure of which would"
"prejudicially affect the sovereignty and integrity of India, the security,"
"strategic, scientific or economic interests of the State, relation with foreign"
State or lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the disclosure of which
may constitute contempt of court;
"(c) information, the disclosure of which would cause a"
breach of privilege of Parliament or the State Legislature;
"(d) information including commercial confidence, trade"
"secrets or intellectual property, the disclosure of which would harm the"
"competitive position of a third party, unless the competent authority is"
satisfied that larger public interest warrants the disclosure of such
information;
14
(e) information available to a person in his fiduciary
"relationship, unless the competent authority is satisfied that the larger"
public interest warrants the disclosure of such information;
(f) information received in confidence from foreign
Government;
"(g) information, the disclosure of which would"
endanger the life or physical safety of any person or identify the source of
information or assistance given in confidence for law enforcement or
security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
"the Council of Ministers, Secretaries and other officers:"
"Provided that the decisions of Council of Ministers, the reasons thereof,"
and the material on the basis of which the decisions were taken shall be
"made public after the decision has been taken, and the matter is complete,"
or over:
Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed;
(j) information which relates to personal information
the disclosure of which has no relationship to any public activity or
"interest, or which would cause unwarranted invasion of the privacy of the"
individual unless the Central Public Information Officer or the State
"Public Information Officer or the appellate authority, as the case may be,"
is satisfied that the larger public interest justifies the disclosure of such
information:
Provided that the information which cannot be denied to the Parliament or
a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in"
"accordance with sub-section (1), a public authority may allow access to"
"information, if public interest in disclosure outweighs the harm to the"
protected interests.
"(3) Subject to the provisions of clauses (a), (c) and (i)"
"of sub-section (1), any information relating to any occurrence, event or"
"matter which has taken place, occurred or happened twenty years before"
15
the date on which any request is made under secton 6 shall be provided to
any person making a request under that section:
Provided that where any question arises as to the date from which the said
"period of twenty years has to be computed, the decision of the Central"
"Government shall be final, subject to the usual appeals provided for in this"
Act.”
(emphasis supplied)
"Section 9 provides that without prejudice to the provisions of section 8, a"
request for information may be rejected if such a request for providing
access would involve an infringement of copyright. Section 10 deals with
severability of exempted information and sub-section (1) thereof is extracted
below:
“(1) Where a request for access to information is rejected on the ground
"that it is in relation to information which is exempt from disclosure, then,"
"notwithstanding anything contained in this Act, access may be provided to"
that part of the record which does not contain any information which is
exempt from disclosure under this Act and which can reasonably be
severed from any part that contains exempt information.”
Section 11 deals with third party information and sub-section (1) thereof is
extracted below:
“(1) Where a Central Public Information Officer or a State Public
"Information Officer, as the case may be, intends to disclose any"
"information or record, or part thereof on a request made under this Act,"
which relates to or has been supplied by a third party and has been treated
"as confidential by that third party, the Central Public Information Officer"
"or State Public Information Officer, as the case may be, shall, within five"
"days from the receipt of the request, give a written notice to such third"
party of the request and of the fact that the Central Public Information
"Officer or State Public Information Officer, as the case may be, intends to"
16
"disclose the information or record, or part thereof, and invite the third"
"party to make a submission in writing or orally, regarding whether the"
"information should be disclosed, and such submission of the third party"
shall be kept in view while taking a decision about disclosure of
information:
Provided that except in the case of trade or commercial secrets protected
"by law, disclosure may be allowed if the public interest in disclosure"
outweighs in importance any possible harm or injury to the interests of
such third party.”
"The definitions of information, public authority, record and right to"
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are"
extracted below:
"“(f) ""information"" means any material in any form, including records,"
"documents, memos, e-mails, opinions, advices, press releases, circulars,"
"orders, logbooks, contracts, reports, papers, samples, models, data material"
held in any electronic form and information relating to any private body
which can be accessed by a public authority under any other law for the
time being in force;
"(h) ""public authority"" means any authority or body or institution of self-"
government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
"(d) by notification issued or order made by the appropriate Government,"
and includes any-
"(i) body owned, controlled or substantially financed;"
"(ii) non-Government organisation substantially financed,"
directly or indirectly by funds provided by the appropriate Government;
17
"(i) ""record"" includes-"
"(a) any document, manuscript and file;"
"(b) any microfilm, microfiche and facsimile copy of a document;"
(c) any reproduction of image or images embodied in such microfilm
(whether enlarged or not); and
(d) any other material produced by a computer or any other device;
"(j) ""right to information"" means the right to information accessible under"
this Act which is held by or under the control of any public authority and
includes the right to-
"(i) inspection of work, documents, records;"
"(ii) taking notes, extracts or certified copies of documents or records;"
(iii) taking certified samples of material;
"(iv) obtaining information in the form of diskettes, floppies, tapes,"
video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other
device;
Section 22 provides for the Act to have overriding effect and is extracted
below:
“The provisions of this Act shall have effect notwithstanding anything
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of"
"1923), and any other law for the time being in force or in any instrument"
having effect by virtue of any law other than this Act.”
10. It will also be useful to refer to a few decisions of this Court which
considered the importance and scope of the right to information. In State of
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:"
18
"“In a government of responsibility like ours, where all the agents of the"
"public must be responsible for their conduct, there can but few secrets."
"The people of this country have a right to know every public act,"
"everything, that is done in a public way, by their public functionaries."
They are entitled to know the particulars of every public transaction in all
"its bearing. The right to know, which is derived from the concept of"
"freedom of speech, though not absolute, is a factor which should make one"
"wary, when secrecy is claimed for transactions which can, at any rate,"
have no repercussion on public security.”
(emphasis supplied)
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:"
"“In modern constitutional democracies, it is axiomatic that citizens have a"
"right to know about the affairs of the Government which, having been"
"elected by them, seeks to formulate sound policies of governance aimed at"
"their welfare. However, like all other rights, even this right has recognised"
"limitations; it is, by no means, absolute. ………………Implicit in this"
assertion is the proposition that in transaction which have serious
"repercussions on public security, secrecy can legitimately be claimed"
because it would then be in the public interest that such matters are not
publicly disclosed or disseminated.
To ensure the continued participation of the people in the democratic
"process, they must be kept informed of the vital decisions taken by the"
"Government and the basis thereof. Democracy, therefore, expects"
openness and openness is a concomitant of a free society. Sunlight is the
best disinfectant. But it is equally important to be alive to the dangers that
lie ahead. It is important to realise that undue popular pressure brought to
bear on decision-makers is Government can have frightening side-effects.
If every action taken by the political or executive functionary is
transformed into a public controversy and made subject to an enquiry to
"soothe popular sentiments, it will undoubtedly have a chilling effect on the"
independence of the decision-maker who may find it safer not to take any
decision. It will paralyse the entire system and bring it to a grinding halt.
So we have two conflicting situations almost enigmatic and we think the
answer is to maintain a fine balance which would serve public interest.”
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,"
this Court held that right of information is a facet of the freedom of “speech
19
and expression” as contained in Article 19(1)(a) of the Constitution of India
and such a right is subject to any reasonable restriction in the interest of the
security of the state and subject to exemptions and exceptions.
Re : Question (i)
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to
"any material in any form which includes records, documents, opinions,"
papers among several other enumerated items. The term ‘record’ is defined
"in section 2(i) of the said Act as including any document, manuscript or file"
among others. When a candidate participates in an examination and writes
his answers in an answer-book and submits it to the examining body for
"evaluation and declaration of the result, the answer-book is a document or"
record. When the answer-book is evaluated by an examiner appointed by the
"examining body, the evaluated answer-book becomes a record containing"
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also
an ‘information’ under the RTI Act.
12. Section 3 of RTI Act provides that subject to the provisions of this
Act all citizens shall have the right to information. The term ‘right to
information’ is defined in section 2(j) as the right to information accessible
20
under the Act which is held by or under the control of any public authority.
"Having regard to section 3, the citizens have the right to access to all"
information held by or under the control of any public authority except those
excluded or exempted under the Act. The object of the Act is to empower
the citizens to fight against corruption and hold the Government and their
"instrumentalities accountable to the citizens, by providing them access to"
information regarding functioning of every public authority. Certain
safeguards have been built into the Act so that the revelation of information
will not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidential and sensitive information. The RTI Act provides
access to information held by or under the control of public authorities and
not in regard to information held by any private person. The Act provides
the following exclusions by way of exemptions and exceptions (under
"sections 8, 9 and 24) in regard to information held by public authorities:"
(i) Exclusion of the Act in entirety under section 24 to intelligence and
security organizations specified in the Second Schedule even though
"they may be “public authorities”, (except in regard to information"
with reference to allegations of corruption and human rights
violations).
21
(ii) Exemption of the several categories of information enumerated in
section 8(1) of the Act which no public authority is under an
"obligation to give to any citizen, notwithstanding anything contained"
"in the Act [however, in regard to the information exempted under"
"clauses (d) and (e), the competent authority, and in regard to the"
"information excluded under clause (j), Central Public Information"
"Officer/State Public Information Officer/the Appellate Authority, may"
"direct disclosure of information, if larger public interest warrants or"
justifies the disclosure].
(iii) If any request for providing access to information involves an
"infringement of a copyright subsisting in a person other than the State,"
the Central/State Public Information Officer may reject the request
under section 9 of RTI Act.
"Having regard to the scheme of the RTI Act, the right of the citizens to"
"access any information held or under the control of any public authority,"
should be read in harmony with the exclusions/exemptions in the Act.
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)"
are neither security nor intelligence organisations and therefore the
exemption under section 24 will not apply to them. The disclosure of
information with reference to answer-books does not also involve
infringement of any copyright and therefore section 9 will not apply.
22
"Resultantly, unless the examining bodies are able to demonstrate that the"
evaluated answer-books fall under any of the categories of exempted
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,"
they will be bound to provide access to the information and any applicant
"can either inspect the document/record, take notes, extracts or obtain"
certified copies thereof.
14. The examining bodies contend that the evaluated answer-books are
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are"
‘information’ held in its fiduciary relationship. They fairly conceded that
evaluated answer-books will not fall under any other exemptions in sub-
section (1) of section 8. Every examinee will have the right to access his
"evaluated answer-books, by either inspecting them or take certified copies"
"thereof, unless the evaluated answer-books are found to be exempted under"
section 8(1)(e) of the RTI Act.
Re : Question (ii)
"15. In Maharashtra State Board, this Court was considering whether"
denial of re-evaluation of answer-books or denial of disclosure by way of
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of"
23
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was"
violative of principles of natural justice and violative of Articles 14 and 19
of the Constitution of India. Rule 104(1) provided that no re-evaluation of
the answer books shall be done and on an application of any candidate
verification will be restricted to checking whether all the answers have been
examined and that there is no mistake in the totalling of marks for each
question in that subject and transferring marks correctly on the first cover
page of the answer book. Rule 104(3) provided that no candidate shall claim
or be entitled to re-evaluation of his answer-books or inspection of answer-
books as they were treated as confidential. This Court while upholding the
validity of Rule 104(3) held as under :
“…. the “process of evaluation of answer papers or of subsequent
verification of marks” under Clause (3) of Regulation 104 does not attract
the principles of natural justice since no decision making process which
brings about adverse civil consequences to the examinees in involved. The
principles of natural justice cannot be extended beyond reasonable and
rational limits and cannot be carried to such absurd lengths as to make it
necessary that candidates who have taken a public examination should be
allowed to participate in the process of evaluation of their performances or
to verify the correctness of the evaluation made by the examiners by
themselves conducting an inspection of the answer-books and determining
whether there has been a proper and fair valuation of the answers by the
"examiners."""
So long as the body entrusted with the task of framing the rules or
"regulations acts within the scope of the authority conferred on it, in the"
sense that the rules or regulations made by it have a rational nexus with
"the object and purpose of the statute, the court should not concern itself"
with the wisdom or efficaciousness of such rules or regulations…. The
Legislature and its delegate are the sole repositories of the power to decide
what policy should be pursued in relation to matters covered by the Act …
24
and there is no scope for interference by the Court unless the particular
provision impugned before it can be said to suffer from any legal
"infirmity, in the sense of its being wholly beyond the scope of the"
regulation making power or its being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations
imposed by the Constitution.
"It was perfectly within the competence of the Board, rather it was its plain"
"duty, to apply its mind and decide as a matter of policy relating to the"
conduct of the examination as to whether disclosure and inspection of the
"answer books should be allowed to the candidates, whether and to what"
extent verification of the result should be permitted after the results have
already been announced and whether any right to claim revaluation of the
answer books should be recognised or provided for. All these are
undoubtedly matters which have an intimate nexus with the objects and
"purposes of the enactment and are, therefore, with in the ambit of the"
general power to make regulations….”
This Court held that Regulation 104(3) cannot be held to be unreasonable
"merely because in certain stray instances, errors or irregularities had gone"
unnoticed even after verification of the concerned answer books according
to the existing procedure and it was only after further scrutiny made either
on orders of the court or in the wake of contentions raised in the petitions
"filed before a court, that such errors or irregularities were ultimately"
discovered. This court reiterated the view that “the test of reasonableness is
not applied in vacuum but in the context of life’s realities” and concluded
"that realistically and practically, providing all the candidates inspection of"
their answer books or re-evaluation of the answer books in the presence of
the candidates would not be feasible. Dealing with the contention that every
25
student is entitled to fair play in examination and receive marks matching his
"performance, this court held :"
“What constitutes fair play depends upon the facts and circumstances
relating to each particular given situation. If it is found that every possible
precaution has been taken and all necessary safeguards provided to ensure
that the answer books inclusive of supplements are kept in safe custody so
as to eliminate the danger of their being tampered with and that the
evaluation is done by the examiners applying uniform standards with
checks and crosschecks at different stages and that measures for detection
"of malpractice, etc. have also been effectively adopted, in such cases it"
"will not be correct on the part of the Courts to strike down, the provision"
prohibiting revaluation on the ground that it violates the rules of fair play.
It appears that the procedure evolved by the Board for ensuring fairness
and accuracy in evaluation of the answer books has made the system as
fool proof as can be possible and is entirely satisfactory. The Board is a
very responsible body. The candidates have taken the examination with
full awareness of the provisions contained in the Regulations and in the
declaration made in the form of application for admission to the
examination they have solemnly stated that they fully agree to abide by the
"regulations issued by the Board. In the circumstances, when we find that"
"all safeguards against errors and malpractices have been provided for,"
there cannot be said to be any denial of fair play to the examinees by
reason of the prohibition against asking for revaluation…. “
This Court concluded that if inspection and verification in the presence of
"the candidates, or revaluation, have to be allowed as of right, it may lead to"
"gross and indefinite uncertainty, particularly in regard to the relative ranking"
"etc. of the candidate, besides leading to utter confusion on account of the"
enormity of the labour and time involved in the process. This court
concluded :
26
“… the Court should be extremely reluctant to substitute its own views as
"to what is wise, prudent and proper in relation to academic matters in"
preference to those formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working of educational
institutions and the departments controlling them. It will be wholly wrong
for the court to make a pedantic and purely idealistic approach to the
"problems of this nature, isolated from the actual realities and grass root"
problems involved in the working of the system and unmindful of the
consequences which would emanate if a purely idealistic view as opposed
to a pragmatic one were to be propounded.”
16. The above principles laid down in Maharashtra State Board have
"been followed and reiterated in several decisions of this Court, some of"
which are referred to in para (6) above. But the principles laid down in
decisions such as Maharashtra State Board depend upon the provisions of
the rules and regulations of the examining body. If the rules and regulations
"of the examining body provide for re-evaluation, inspection or disclosure of"
"the answer-books, then none of the principles in Maharashtra State Board or"
"other decisions following it, will apply or be relevant. There has been a"
gradual change in trend with several examining bodies permitting inspection
and disclosure of the answer-books.
17. It is thus now well settled that a provision barring inspection or
disclosure of the answer-books or re-evaluation of the answer-books and
restricting the remedy of the candidates only to re-totalling is valid and
"binding on the examinee. In the case of CBSE, the provisions barring re-"
27
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104"
considered in Maharashtra State Board. As a consequence if an examination
is governed only by the rules and regulations of the examining body which
"bar inspection, disclosure or re-evaluation, the examinee will be entitled"
only for re-totalling by checking whether all the answers have been
evaluated and further checking whether there is no mistake in totaling of
marks for each question and marks have been transferred correctly to the
"title (abstract) page. The position may however be different, if there is a"
"superior statutory right entitling the examinee, as a citizen to seek access to"
"the answer books, as information."
"18. In these cases, the High Court has rightly denied the prayer for re-"
evaluation of answer-books sought by the candidates in view of the bar
contained in the rules and regulations of the examining bodies. It is also not
a relief available under the RTI Act. Therefore the question whether re-
"evaluation should be permitted or not, does not arise for our consideration."
What arises for consideration is the question whether the examinee is
entitled to inspect his evaluated answer-books or take certified copies
"thereof. This right is claimed by the students, not with reference to the rules"
"or bye-laws of examining bodies, but under the RTI Act which enables them"
28
and entitles them to have access to the answer-books as ‘information’ and
inspect them and take certified copies thereof. Section 22 of RTI Act
"provides that the provisions of the said Act will have effect, notwithstanding"
anything inconsistent therewith contained in any other law for the time being
in force. Therefore the provisions of the RTI Act will prevail over the
provisions of the bye-laws/rules of the examining bodies in regard to
"examinations. As a result, unless the examining body is able to demonstrate"
that the answer-books fall under the exempted category of information
"described in clause (e) of section 8(1) of RTI Act, the examining body will"
be bound to provide access to an examinee to inspect and take copies of his
"evaluated answer-books, even if such inspection or taking copies is barred"
under the rules/bye-laws of the examining body governing the examinations.
"Therefore, the decision of this Court in Maharashtra State Board (supra)"
"and the subsequent decisions following the same, will not affect or interfere"
with the right of the examinee seeking inspection of answer-books or taking
certified copies thereof.
Re : Question (iii)
19. Section 8(1) enumerates the categories of information which are
exempted from disclosure under the provisions of the RTI Act. The
29
examining bodies rely upon clause (e) of section 8(1) which provides that
"there shall be no obligation on any public authority to give any citizen,"
information available to it in its fiduciary relationship. This exemption is
subject to the condition that if the competent authority (as defined in section
2(e) of RTI Act) is satisfied that the larger public interest warrants the
"disclosure of such information, the information will have to be disclosed."
Therefore the question is whether the examining body holds the evaluated
answer-books in its fiduciary relationship.
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different
"capacities and relationship, involving a common duty or obligation."
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary"
relationship’ thus:
“A relationship in which one person is under a duty to act for the benefit
of the other on matters within the scope of the relationship. Fiduciary
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,"
and attorney-client – require the highest duty of care. Fiduciary
relationships usually arise in one of four situations : (1) when one person
"places trust in the faithful integrity of another, who as a result gains"
"superiority or influence over the first, (2) when one person assumes"
"control and responsibility over another, (3) when one person has a duty to"
act for or give advice to another on matters falling within the scope of the
"relationship, or (4) when there is a specific relationship that has"
"traditionally been recognized as involving fiduciary duties, as with a"
lawyer and a client or a stockbroker and a customer.”
30
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as
one whose intention is to act for the benefit of another as to matters relevant
to the relation between them. The Corpus Juris Secundum (Vol. 36A page
381) attempts to define fiduciary thus :
“A general definition of the word which is sufficiently comprehensive to
"embrace all cases cannot well be given. The term is derived from the civil,"
"or Roman, law. It connotes the idea of trust or confidence, contemplates"
"good faith, rather than legal obligation, as the basis of the transaction,"
"refers to the integrity, the fidelity, of the party trusted, rather than his"
"credit or ability, and has been held to apply to all persons who occupy a"
"position of peculiar confidence toward others, and to include those"
informal relations which exist whenever one party trusts and relies on
"another, as well as technical fiduciary relations."
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for"
"another, a trustee, a person holding the character of a trustee, or a"
"character analogous to that of a trustee, with respect to the trust and"
confidence involved in it and the scrupulous good faith and candor which
"it requires; a person having the duty, created by his undertaking, to act"
primarily for another’s benefit in matters connected with such
"undertaking. Also more specifically, in a statute, a guardian, trustee,"
"executor, administrator, receiver, conservator, or any person acting in any"
"fiduciary capacity for any person, trust, or estate. Some examples of what,"
"in particular connections, the term has been held to include and not to"
include are set out in the note.”
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines"
‘fiducial relation’ thus :
“There is a technical distinction between a ‘fiducial relation’ which is
"more correctly applicable to legal relationships between parties, such as"
"guardian and ward, administrator and heirs, and other similar"
"relationships, and ‘confidential relation’ which includes the legal"
"relationships, and also every other relationship wherein confidence is"
rightly reposed and is exercised.
"Generally, the term ‘fiduciary’ applies to any person who occupies a"
position of peculiar confidence towards another. It refers to integrity and
31
"fidelity. It contemplates fair dealing and good faith, rather than legal"
"obligation, as the basis of the transaction. The term includes those"
informal relations which exist whenever one party trusts and relies upon
"another, as well as technical fiduciary relations.”"
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term
fiduciary was defined thus :
“A fiduciary is someone who has undertaken to act for and on behalf of
another in a particular matter in circumstances which give rise to a
relationship of trust and confidence. The distinguishing obligation of a
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;
he must not make a profit out of his trust; he must not place himself in a
position where his duty and his interest may conflict; he may not act for
his own benefit or the benefit of a third person without the informed
consent of his principal.”
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the"
California Court of Appeals defined fiduciary relationship as under :
“any relationship existing between the parties to the transaction where one
of the parties is duty bound to act with utmost good faith for the benefit of
the other party. Such a relationship ordinarily arises where confidence is
"reposed by one person in the integrity of another, and in such a relation the"
"party in whom the confidence is reposed, if he voluntarily accepts or"
"assumes to accept the confidence, can take no advantage from his acts"
relating to the interests of the other party without the latter’s knowledge
and consent.”
21. The term ‘fiduciary’ refers to a person having a duty to act for the
"benefit of another, showing good faith and condour, where such other person"
reposes trust and special confidence in the person owing or discharging the
duty. The term ‘fiduciary relationship’ is used to describe a situation or
32
transaction where one person (beneficiary) places complete confidence in
"another person (fiduciary) in regard to his affairs, business or transaction/s."
The term also refers to a person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in confidence and for the
"benefit and advantage of the beneficiary, and use good faith and fairness in"
dealing with the beneficiary or the things belonging to the beneficiary. If the
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust"
"or to execute certain acts in regard to or with reference to the entrusted thing,"
the fiduciary has to act in confidence and expected not to disclose the thing
or information to any third party. There are also certain relationships where
both the parties have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are : a partner vis-à-vis another partner and
an employer vis-à-vis employee. An employee who comes into possession
of business or trade secrets or confidential information relating to the
"employer in the course of his employment, is expected to act as a fiduciary"
"and cannot disclose it to others. Similarly, if on the request of the employer"
"or official superior or the head of a department, an employee furnishes his"
"personal details and information, to be retained in confidence, the employer,"
the official superior or departmental head is expected to hold such personal
"information in confidence as a fiduciary, to be made use of or disclosed only"
33
if the employee’s conduct or acts are found to be prejudicial to the employer.
"22. In a philosophical and very wide sense, examining bodies can be said"
"to act in a fiduciary capacity, with reference to students who participate in an"
"examination, as a government does while governing its citizens or as the"
present generation does with reference to the future generation while
preserving the environment. But the words ‘information available to a
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in
"its normal and well recognized sense, that is to refer to persons who act in a"
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries"
who are to be expected to be protected or benefited by the actions of the
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian"
"with reference to a minor/physically/infirm/mentally challenged, a parent"
"with reference to a child, a lawyer or a chartered accountant with reference"
"to a client, a doctor or nurse with reference to a patient, an agent with"
"reference to a principal, a partner with reference to another partner, a"
"director of a company with reference to a share-holder, an executor with"
"reference to a legatee, a receiver with reference to the parties to a lis, an"
employer with reference to the confidential information relating to the
"employee, and an employee with reference to business dealings/transaction"
of the employer. We do not find that kind of fiduciary relationship between
34
"the examining body and the examinee, with reference to the evaluated"
"answer-books, that come into the custody of the examining body."
23. The duty of examining bodies is to subject the candidates who have
completed a course of study or a period of training in accordance with its
"curricula, to a process of verification/examination/testing of their"
"knowledge, ability or skill, or to ascertain whether they can be said to have"
successfully completed or passed the course of study or training. Other
specialized Examining Bodies may simply subject candidates to a process of
"verification by an examination, to find out whether such person is suitable"
"for a particular post, job or assignment. An examining body, if it is a public"
"authority entrusted with public functions, is required to act fairly,"
"reasonably, uniformly and consistently for public good and in public"
interest. This Court has explained the role of an examining body in regard to
the process of holding examination in the context of examining whether it
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs."
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:"
"“The process of holding examinations, evaluating answer scripts,"
declaring results and issuing certificates are different stages of a single
statutory non-commercial function. It is not possible to divide this
function as partly statutory and partly administrative. When the
Examination Board conducts an examination in discharge of its statutory
"function, it does not offer its ""services"" to any candidate. Nor does a"
35
"student who participates in the examination conducted by the Board, hires"
or avails of any service from the Board for a consideration. On the other
"hand, a candidate who participates in the examination conducted by the"
"Board, is a person who has undergone a course of study and who requests"
the Board to test him as to whether he has imbibed sufficient knowledge to
be fit to be declared as having successfully completed the said course of
"education; and if so, determine his position or rank or competence vis-a-"
vis other examinees. The process is not therefore availment of a service by
"a student, but participation in a general examination conducted by the"
Board to ascertain whether he is eligible and fit to be considered as having
successfully completed the secondary education course. The examination
fee paid by the student is not the consideration for availment of any
"service, but the charge paid for the privilege of participation in the"
examination.……… The fact that in the course of conduct of the
"examination, or evaluation of answer-scripts, or furnishing of mark-books"
"or certificates, there may be some negligence, omission or deficiency,"
"does not convert the Board into a service-provider for a consideration, nor"
convert the examinee into a consumer ………”
It cannot therefore be said that the examining body is in a fiduciary
relationship either with reference to the examinee who participates in the
examination and whose answer-books are evaluated by the examining body.
24. We may next consider whether an examining body would be entitled
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that"
it is in a fiduciary relationship with the examinee. That section provides that
"notwithstanding anything contained in the Act, there shall be no obligation"
to give any citizen information available to a person in his fiduciary
"relationship. This would only mean that even if the relationship is fiduciary,"
the exemption would operate in regard to giving access to the information
36
"held in fiduciary relationship, to third parties. There is no question of the"
"fiduciary withholding information relating to the beneficiary, from the"
beneficiary himself. One of the duties of the fiduciary is to make thorough
disclosure of all relevant facts of all transactions between them to the
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if"
"it is in a fiduciary relationship with an examinee, will be liable to make a full"
disclosure of the evaluated answer-books to the examinee and at the same
"time, owe a duty to the examinee not to disclose the answer-books to anyone"
"else. If A entrusts a document or an article to B to be processed, on"
"completion of processing, B is not expected to give the document or article"
to anyone else but is bound to give the same to A who entrusted the
"document or article to B for processing. Therefore, if a relationship of"
fiduciary and beneficiary is assumed between the examining body and the
"examinee with reference to the answer-book, section 8(1)(e) would operate"
as an exemption to prevent access to any third party and will not operate as a
"bar for the very person who wrote the answer-book, seeking inspection or"
disclosure of it.
25. An evaluated answer book of an examinee is a combination of two
different ‘informations’. The first is the answers written by the examinee and
37
second is the marks/assessment by the examiner. When an examinee seeks
inspection of his evaluated answer-books or seeks a certified copy of the
"evaluated answer-book, the information sought by him is not really the"
"answers he has written in the answer-books (which he already knows), nor"
the total marks assigned for the answers (which has been declared). What he
"really seeks is the information relating to the break-up of marks, that is, the"
specific marks assigned to each of his answers. When an examinee seeks
"‘information’ by inspection/certified copies of his answer-books, he knows"
the contents thereof being the author thereof. When an examinee is
"permitted to examine an answer-book or obtain a certified copy, the"
examining body is not really giving him some information which is held by
"it in trust or confidence, but is only giving him an opportunity to read what"
he had written at the time of examination or to have a copy of his answers.
"Therefore, in furnishing the copy of an answer-book, there is no question of"
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is"
not in regard to the answer-book but in regard to the marks awarded on
evaluation of the answer-book. Even here the total marks given to the
examinee in regard to his answer-book are already declared and known to
the examinee. What the examinee actually wants to know is the break-up of
"marks given to him, that is how many marks were given by the examiner to"
38
each of his answers so that he can assess how is performance has been
evaluated and whether the evaluation is proper as per his hopes and
"expectations. Therefore, the test for finding out whether the information is"
"exempted or not, is not in regard to the answer book but in regard to the"
evaluation by the examiner.
26. This takes us to the crucial issue of evaluation by the examiner. The
examining body engages or employs hundreds of examiners to do the
evaluation of thousands of answer books. The question is whether the
information relating to the ‘evaluation’ (that is assigning of marks) is held
by the examining body in a fiduciary relationship. The examining bodies
contend that even if fiduciary relationship does not exist with reference to
"the examinee, it exists with reference to the examiner who evaluates the"
answer-books. On a careful examination we find that this contention has no
merit. The examining body entrusts the answer-books to an examiner for
evaluation and pays the examiner for his expert service. The work of
evaluation and marking the answer-book is an assignment given by the
examining body to the examiner which he discharges for a consideration.
"Sometimes, an examiner may assess answer-books, in the course of his"
"employment, as a part of his duties without any specific or special"
39
remuneration. In other words the examining body is the ‘principal’ and the
"examiner is the agent entrusted with the work, that is, evaluation of answer-"
"books. Therefore, the examining body is not in the position of a fiduciary"
"with reference to the examiner. On the other hand, when an answer-book is"
"entrusted to the examiner for the purpose of evaluation, for the period the"
answer-book is in his custody and to the extent of the discharge of his
"functions relating to evaluation, the examiner is in the position of a fiduciary"
with reference to the examining body and he is barred from disclosing the
contents of the answer-book or the result of evaluation of the answer-book to
anyone other than the examining body. Once the examiner has evaluated the
"answer books, he ceases to have any interest in the evaluation done by him."
"He does not have any copy-right or proprietary right, or confidentiality right"
in regard to the evaluation. Therefore it cannot be said that the examining
"body holds the evaluated answer books in a fiduciary relationship, qua the"
examiner.
"27. We, therefore, hold that an examining body does not hold the"
evaluated answer-books in a fiduciary relationship. Not being information
"available to an examining body in its fiduciary relationship, the exemption"
under section 8(1)(e) is not available to the examining bodies with reference
to evaluated answer-books. As no other exemption under section 8 is
40
"available in respect of evaluated answer books, the examining bodies will"
have to permit inspection sought by the examinees.
Re : Question (iv)
28. When an examining body engages the services of an examiner to
"evaluate the answer-books, the examining body expects the examiner not to"
disclose the information regarding evaluation to anyone other than the
examining body. Similarly the examiner also expects that his name and
particulars would not be disclosed to the candidates whose answer-books are
"evaluated by him. In the event of such information being made known, a"
disgruntled examinee who is not satisfied with the evaluation of the answer
"books, may act to the prejudice of the examiner by attempting to endanger"
"his physical safety. Further, any apprehension on the part of the examiner"
"that there may be danger to his physical safety, if his identity becomes"
"known to the examinees, may come in the way of effective discharge of his"
"duties. The above applies not only to the examiner, but also to the"
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book."
The answer book usually contains not only the signature and code number of
"the examiner, but also the signatures and code number of the scrutiniser/co-"
ordinator/head examiner. The information as to the names or particulars of
the examiners/co-ordinators/scrutinisers/head examiners are therefore
41
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground"
"that if such information is disclosed, it may endanger their physical safety."
"Therefore, if the examinees are to be given access to evaluated answer-"
"books either by permitting inspection or by granting certified copies, such"
access will have to be given only to that part of the answer-book which does
not contain any information or signature of the examiners/co-
"ordinators/scrutinisers/head examiners, exempted from disclosure under"
section 8(1)(g) of RTI Act. Those portions of the answer-books which
contain information regarding the examiners/co-ordinators/scrutinisers/head
examiners or which may disclose their identity with reference to signature or
"initials, shall have to be removed, covered, or otherwise severed from the"
"non-exempted part of the answer-books, under section 10 of RTI Act."
29. The right to access information does not extend beyond the period
during which the examining body is expected to retain the answer-books. In
"the case of CBSE, the answer-books are required to be maintained for a"
period of three months and thereafter they are liable to be disposed
of/destroyed. Some other examining bodies are required to keep the answer-
books for a period of six months. The fact that right to information is
available in regard to answer-books does not mean that answer-books will
have to be maintained for any longer period than required under the rules
42
and regulations of the public authority. The obligation under the RTI Act is
to make available or give access to existing information or information
which is expected to be preserved or maintained. If the rules and regulations
governing the functioning of the respective public authority require
"preservation of the information for only a limited period, the applicant for"
information will be entitled to such information only if he seeks the
"information when it is available with the public authority. For example, with"
"reference to answer-books, if an examinee makes an application to CBSE for"
inspection or grant of certified copies beyond three months (or six months or
such other period prescribed for preservation of the records in regard to
"other examining bodies) from the date of declaration of results, the"
application could be rejected on the ground that such information is not
available. The power of the Information Commission under section 19(8) of
the RTI Act to require a public authority to take any such steps as may be
"necessary to secure compliance with the provision of the Act, does not"
"include a power to direct the public authority to preserve the information, for"
any period larger than what is provided under the rules and regulations of the
public authority.
"30. On behalf of the respondents/examinees, it was contended that having"
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on"
43
the part of every public authority to maintain the information for a minimum
period of twenty years and make it available whenever an application was
made in that behalf. This contention is based on a complete misreading and
misunderstanding of section 8(3). The said sub-section nowhere provides
that records or information have to be maintained for a period of twenty
years. The period for which any particular records or information has to be
maintained would depend upon the relevant statutory rule or regulation of
the public authority relating to the preservation of records. Section 8(3)
"provides that information relating to any occurrence, event or matters which"
has taken place and occurred or happened twenty years before the date on
"which any request is made under section 6, shall be provided to any person"
making a request. This means that where any information required to be
maintained and preserved for a period beyond twenty years under the rules
"of the public authority, is exempted from disclosure under any of the"
"provisions of section 8(1) of RTI Act, then, notwithstanding such"
"exemption, access to such information shall have to be provided by"
"disclosure thereof, after a period of twenty years except where they relate to"
"information falling under clauses (a), (c) and (i) of section 8(1). In other"
"words, section 8(3) provides that any protection against disclosure that may"
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to"
44
be available after twenty years in regard to records which are required to be
preserved for more than twenty years. Where any record or information is
required to be destroyed under the rules and regulations of a public authority
"prior to twenty years, section 8(3) will not prevent destruction in accordance"
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring
"all ‘information’ to be preserved and maintained for twenty years or more,"
nor does it override any rules or regulations governing the period for which
"the record, document or information is required to be preserved by any"
public authority.
31. The effect of the provisions and scheme of the RTI Act is to divide
‘information’ into the three categories. They are :
(i) Information which promotes transparency and accountability in
"the working of every public authority, disclosure of which may"
also help in containing or discouraging corruption (enumerated in
clauses (b) and (c) of section 4(1) of RTI Act).
(ii) Other information held by public authority (that is all information
other than those falling under clauses (b) and (c) of section 4(1) of
RTI Act).
(iii) Information which is not held by or under the control of any
public authority and which cannot be accessed by a public
authority under any law for the time being in force.
Information under the third category does not fall within the scope of RTI
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held"
45
"by or under the control of a public authority, which falls either under the first"
or second category. In regard to the information falling under the first
"category, there is also a special responsibility upon public authorities to suo"
moto publish and disseminate such information so that they will be easily
and readily accessible to the public without any need to access them by
having recourse to section 6 of RTI Act. There is no such obligation to
publish and disseminate the other information which falls under the second
category.
"32. The information falling under the first category, enumerated in"
sections 4(1)(b) & (c) of RTI Act are extracted below :
“4. Obligations of public authorities.-(1) Every public authority shall--
(a) xxxxxx
(b) publish within one
"hundred and twenty days from the enactment of this Act,--"
"(i) the particulars of its organisation, functions and duties;"
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making
"process, including channels of supervision and"
accountability;
(iv) the norms set by it for the discharge of its functions;
"(v) the rules, regulations, instructions, manuals and records,"
held by it or under its control or used by its employees for
discharging its functions;
(vi) a statement of the categories of documents that are held
by it or under its control;
46
(vii) the particulars of any arrangement that exists for
"consultation with, or representation by, the members of the"
public in relation to the formulation of its policy or
implementation thereof;
"(viii) a statement of the boards, councils, committees and"
other bodies consisting of two or more persons constituted
"as its part or for the purpose of its advice, and as to whether"
"meetings of those boards, councils, committees and other"
"bodies are open to the public, or the minutes of such"
meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its
"officers and employees, including the system of"
compensation as provided in its regulations;
"(xi) the budget allocated to each of its agency, indicating"
"the particulars of all plans, proposed expenditures and"
reports on disbursements made;
"(xii) the manner of execution of subsidy programmes,"
including the amounts allocated and the details of
beneficiaries of such programmes;
"(xiii) particulars of recipients of concessions, permits or"
authorisations granted by it;
"(xiv) details in respect of the information, available to or"
"held by it, reduced in an electronic form;"
(xv) the particulars of facilities available to citizens for
"obtaining information, including the working hours of a"
"library or reading room, if maintained for public use;"
"(xvi) the names, designations and other particulars of the"
Public Information Officers;
(xvii) such other information as may be prescribed; and
thereafter update these publications every year;
(c) publish all relevant facts
while formulating important policies or announcing the decisions
which affect public;
(emphasis supplied)
47
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of"
information enumerated in sections 4(1)(b) & (c) are extracted below:
“(2) It shall be a constant endeavour of every public
authority to take steps in accordance with the requirements of clause (b) of
sub-section (1) to provide as much information suo motu to the public
"at regular intervals through various means of communications,"
"including internet, so that the public have minimum resort to the use"
of this Act to obtain information.
"(3) For the purposes of sub-section (1), every"
information shall be disseminated widely and in such form and
manner which is easily accessible to the public.
(4) All materials shall be disseminated taking into
"consideration the cost effectiveness, local language and the most effective"
method of communication in that local area and the information should be
"easily accessible, to the extent possible in electronic format with the"
"Central Public Information Officer or State Public Information Officer, as"
"the case may be, available free or at such cost of the medium or the print"
cost price as may be prescribed.
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated"""
means making known or communicated the information to the public
"through notice boards, newspapers, public announcements, media"
"broadcasts, the internet or any other means, including inspection of offices"
of any public authority.”
(emphasis supplied)
33. Some High Courts have held that section 8 of RTI Act is in the nature
of an exception to section 3 which empowers the citizens with the right to
"information, which is a derivative from the freedom of speech; and that"
"therefore section 8 should be construed strictly, literally and narrowly. This"
may not be the correct approach. The Act seeks to bring about a balance
"between two conflicting interests, as harmony between them is essential for"
preserving democracy. One is to bring about transparency and accountability
by providing access to information under the control of public authorities.
48
"The other is to ensure that the revelation of information, in actual practice,"
does not conflict with other public interests which include efficient operation
"of the governments, optimum use of limited fiscal resources and"
preservation of confidentiality of sensitive information. The preamble to the
Act specifically states that the object of the Act is to harmonise these two
conflicting interests. While sections 3 and 4 seek to achieve the first
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective."
"Therefore when section 8 exempts certain information from being disclosed,"
"it should not be considered to be a fetter on the right to information, but as"
an equally important provision protecting other public interests essential for
the fulfilment and preservation of democratic ideals.
34. When trying to ensure that the right to information does not conflict
with several other public interests (which includes efficient operations of the
"governments, preservation of confidentiality of sensitive information,"
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and"
enumerate all types of information which require to be exempted from
disclosure in public interest. The legislature has however made an attempt to
do so. The enumeration of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier Act that is section 8 of
"Freedom to Information Act, 2002. The Courts and Information"
49
Commissions enforcing the provisions of RTI Act have to adopt a purposive
"construction, involving a reasonable and balanced approach which"
"harmonises the two objects of the Act, while interpreting section 8 and the"
other provisions of the Act.
"35. At this juncture, it is necessary to clear some misconceptions about"
the RTI Act. The RTI Act provides access to all information that is
available and existing. This is clear from a combined reading of section 3
and the definitions of ‘information’ and ‘right to information’ under clauses
(f) and (j) of section 2 of the Act. If a public authority has any information in
"the form of data or analysed data, or abstracts, or statistics, an applicant may"
"access such information, subject to the exemptions in section 8 of the Act."
But where the information sought is not a part of the record of a public
"authority, and where such information is not required to be maintained under"
"any law or the rules or regulations of the public authority, the Act does not"
"cast an obligation upon the public authority, to collect or collate such non-"
available information and then furnish it to an applicant. A public authority
is also not required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not required to provide
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any"
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’
50
"in the definition of ‘information’ in section 2(f) of the Act, only refers to"
such material available in the records of the public authority. Many public
"authorities have, as a public relation exercise, provide advice, guidance and"
opinion to the citizens. But that is purely voluntary and should not be
confused with any obligation under the RTI Act.
36. Section 19(8) of RTI Act has entrusted the Central/State Information
"Commissions, with the power to require any public authority to take any"
such steps as may be necessary to secure the compliance with the provisions
"of the Act. Apart from the generality of the said power, clause (a) of section"
"19(8) refers to six specific powers, to implement the provision of the Act."
Sub-clause (i) empowers a Commission to require the public authority to
provide access to information if so requested in a particular ‘form’ (that is
"either as a document, micro film, compact disc, pendrive, etc.). This is to"
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a
Commission to require the public authority to appoint a Central Public
Information Officer or State Public Information Officer. This is to secure
compliance with section 5 of the Act. Sub-clause (iii) empowers the
Commission to require a public authority to publish certain information or
categories of information. This is to secure compliance with section 4(1) and
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public
51
authority to make necessary changes to its practices relating to the
"maintenance, management and destruction of the records. This is to secure"
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)
empowers a Commission to require the public authority to increase the
training for its officials on the right to information. This is to secure
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a"
Commission to require the public authority to provide annual reports in
regard to the compliance with clause (b) of section 4(1). This is to ensure
compliance with the provisions of clause (b) of section 4(1) of the Act. The
power under section 19(8) of the Act however does not extend to requiring a
public authority to take any steps which are not required or contemplated to
secure compliance with the provisions of the Act or to issue directions
beyond the provisions of the Act. The power under section 19(8) of the Act
is intended to be used by the Commissions to ensure compliance with the
"Act, in particular ensure that every public authority maintains its records"
duly catalogued and indexed in the manner and in the form which facilitates
"the right to information and ensure that the records are computerized, as"
required under clause (a) of section 4(1) of the Act; and to ensure that the
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are
"published and disseminated, and are periodically updated as provided in sub-"
52
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated
in clause (b) of section 4(1) of the Act are effectively disseminated (by
"publications in print and on websites and other effective means), apart from"
"providing transparency and accountability, citizens will be able to access"
relevant information and avoid unnecessary applications for information
under the Act.
37. The right to information is a cherished right. Information and right to
information are intended to be formidable tools in the hands of responsible
citizens to fight corruption and to bring in transparency and accountability.
The provisions of RTI Act should be enforced strictly and all efforts should
be made to bring to light the necessary information under clause (b) of
section 4(1) of the Act which relates to securing transparency and
accountability in the working of public authorities and in discouraging
"corruption. But in regard to other information,(that is information other than"
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance"
and emphasis are given to other public interests (like confidentiality of
"sensitive information, fidelity and fiduciary relationships, efficient operation"
"of governments, etc.). Indiscriminate and impractical demands or directions"
under RTI Act for disclosure of all and sundry information (unrelated to
transparency and accountability in the functioning of public authorities and
53
eradication of corruption) would be counter-productive as it will adversely
affect the efficiency of the administration and result in the executive getting
bogged down with the non-productive work of collecting and furnishing
"information. The Act should not be allowed to be misused or abused, to"
"become a tool to obstruct the national development and integration, or to"
"destroy the peace, tranquility and harmony among its citizens. Nor should it"
be converted into a tool of oppression or intimidation of honest officials
striving to do their duty. The nation does not want a scenario where 75% of
the staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular
duties. The threat of penalties under the RTI Act and the pressure of the
authorities under the RTI Act should not lead to employees of a public
"authorities prioritising ‘information furnishing’, at the cost of their normal"
and regular duties.
Conclusion
"38. In view of the foregoing, the order of the High Court directing the"
examining bodies to permit examinees to have inspection of their answer
"books is affirmed, subject to the clarifications regarding the scope of the RTI"
54
Act and the safeguards and conditions subject to which ‘information’ should
be furnished. The appeals are disposed of accordingly.
……………………….J
[R. V. Raveendran]
……………………….J
[A. K. Patnaik]
New Delhi;
"August 9, 2011."
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2013
(arising out of SLP(C)No.22609 of 2012)
R.K. JAIN …. APPELLANT
VERSUS
UNION OF INDIA & ANR. ` ….RESPONDENTS
J UD G M E N T
"SUDHANSU JYOTI MUKHOPADHAYA, J."
Leave granted.
"2. In this appeal, the appellant challenges the final"
"judgment and order dated 20th April, 2012 passed by the"
Delhi High Court in L.P.A. No. 22/2012. In the said
"order, the Division Bench dismissed the appeal against"
the order of the learned Single Judge dated 8th
"December, 2011, wherein the Single Judge held that “the"
information sought by the appellant herein is the third
party information wherein third party may plead a
privacy defence and the proper question would be as to
whether divulging of such an information is in the
"public interest or not.” Thus, the matter has been"
remitted back to Chief Information Commissioner to
1
Page 1
consider the issue after following the procedure under
Section 11 of the Right to Information Act.
3. The factual matrix of the case is as follows:
The appellant filed an application to Central
Public Information Officer (hereinafter referred to as
the ‘CPIO’) under Section 6 of the Right to Information
"Act, 2005 (hereinafter referred to as the ‘RTI Act’) on"
"7th October, 2009 seeking the copies of all note sheets"
and correspondence pages of file relating to one Ms.
"Jyoti Balasundram, Member/CESTAT. The Under Secretary,"
who is the CPIO denied the information by impugned
"letter dated 15th October, 2009 on the ground that the"
information sought attracts Clause 8(1)(j) of the RTI
"Act, which reads as follows:­"
“R­20011­68/2009 – ADIC – CESTAT
Government of India
Ministry of Finance
Department of Revenue
"New Delhi, the 15.10.09"
To
Shri R.K. Jain
"1512­B, Bhishm Pitamah Marg,"
"Wazir Nagar,"
New Delhi – 110003
Subject: Application under RTI Act.
"Sir,"
Your RTI application No.RTI/09/2406 dated
7.10.2009 seeks information from File No.27­
2
Page 2
3/2002 Ad­1­C. The file contains analysis of
Annual Confidential Report of Smt. Jyoti
Balasundaram only which attracts clause 8 (1)
(j) of RTI Act. Therefore the information
sought is denied.
"Yours faithfully,"
(Victor James)
Under Secretary to the Govt. of India”
"4. On an appeal under Section 19 of the RTI Act, the"
Director (Headquarters) and Appellate Authority by its
"order dated 18th December, 2009 disallowed the same"
citing same ground as cited by the CPIO; the relevant
portion of which reads as follows:
“2. I have gone through the RTI application
"dated 07.10.2009, wherein the Appellant had"
requested the following information;
(A)Copies of all note sheets and
correspondence pages of File No.
27/3/2002 – Ad. IC relating to Ms. Jyoti
Balasundaram.
"(B)Inspection of all records, documents,"
files and note sheets of File
No.27/3/2002 – Ad. IC.
(C)Copies of records pointed out during /
after inspection.
3. I have gone through the reply dated
"15.10.2009 of the Under Secretary, Ad. IC­"
CESTAT given to the Appellant stating that as
the file contained analysis of the Annual
"Confidential Report of Ms. Jyoti Balasundaram,"
furnishing of information is exempted under
Section 9 (1) (j) of the R.T.I. Act.
5. The provision of Section 8 (1) (j) of the
"RTI Act, 2005 under which the information has"
been denied by the CPIO is reproduced
hereunder:
3
Page 3
“Information which relates to personal
information the disclosure of which has no
relationship to any public activity or
"interest, or which would cause unwarranted"
invasion of the privacy of the individual
unless the Central Public Information Officer
or the State Public Information Officer or the
"appellate authority, as the case may be, is"
satisfied that the larger public interest
justifies the disclosure of such information……”
6. File No.27/3/2002­ Ad.1C deals with follow­
up action on the ACR for the year 2000­2001
"in respect of Ms. Jyoti Balasundaram,"
"Member (Judicial), CEGAT” (now CESTAT)."
The matter discussed therein is personal
and I am not inclined to accept the view of
the Appellant the since Ms. Jyoti
Balasundaram is holding the post of Member
"(Judicial), CESTAT, larger public interest"
"is involved, which therefore, ousts the"
exemption provided under Section 8 (1) (j).
"Moreover, Ms. Jyoti Balasundaram is still"
serving in the CESTAT and the ACR for the
year 2000­2001 is still live and relevant
insofar as her service is concerned.
"Therefore, it may not be proper to rush up"
to the conclusion that the matter is over
"and therefore, the information could have"
been given by the CPIO under Section 8(1)
(i). The file contains only 2 pages of
the notes and 5 pages of the
"correspondence, in which the ACR of the"
officer and the matter connected thereto
"have been discussed, which is exempt from"
disclosure under the aforesaid Section.
"The file contains no other information,"
which can be segregated and provided to the
Appellant.
"7. In view of the above, the appeal is"
disallowed.”
"5. Thereafter, the appellant preferred a second"
appeal before the Central Information Commission under
Section 19 (3) of the RTI Act which was also rejected
"on 22nd April, 2010 with the following observations:­"
4
Page 4
“4. Appellant’s plea is that since the
matter dealt in the above­mentioned file
related to the integrity of a public
"servant, the disclosure of the requested"
information should be authorized in public
interest.
5. It is not in doubt that the file
referred to by the appellant related
to the Annual Confidential Record of a
"third­party, Ms. Jyoti Balasundaram"
and was specific to substantiation by
the Reporting Officer of the comments
made in her ACRs about the third –
"party’s integrity. Therefore,"
appellant’s plea that the matter was
about a public servant’s integrity
per­se is not valid. The ACR examines
all aspects of the performance and the
personality of a public servant –
integrity being one of them. An
examination of the aspect of integrity
"as part of the CR cannot, therefore,"
be equated with the vigilance enquiry
against a public servant. Appellant
was in error in equating the two.
6. It has been the consistent position of
this Commission that ACR grades can
and should be disclosed to the person
to whom the ACRs related and not to
the third – parties except under
exceptional circumstances.
Commission’s decision in P.K. Sarvin
Vs. Directorate General of Works
(CPWD); Appeal No.
CIC/WB/A/2007/00422; Date of Decision;
19.02.2009 followed a Supreme Court
order in Dev Dutt Vs. UOI (Civil
Appeal No. 7631/2002).
7. An examination on file of the comments
made by the reporting and the
reviewing officers in the ACRs of a
"public servant, stands on the same"
footing as the ACRs itself. It
"cannot, therefore, be authorized to be"
"disclosed to a third­party. In fact,"
even disclosure of such files to the
5
Page 5
public servant to whom the ACRs may
relate is itself open to debate.
"8. In view of the above, I am not in a"
position to authorize disclosure of
the information.”
"6. On being aggrieved by the above order, the"
appellant filed a writ petition bearing W.P(C) No. 6756
of 2010 before the Delhi High Court which was rejected
by the learned Single Judge vide judgment dated 8th
"December, 2011 relying on a judgment of Delhi High"
Court in Arvind Kejriwal vs. Central Public
Information Officer reported in AIR 2010 Delhi 216.
The learned Single Judge while observing that except in
"cases involving overriding public interest, the ACR"
record of an officer cannot be disclosed to any person
"other than the officer himself/herself, remanded the"
matter to the Central Information Commission (CIC for
"short) for considering the issue whether, in the larger"
"public interest, the information sought by the"
appellant could be disclosed. It was observed that if
the CIC comes to a conclusion that larger public
interest justifies the disclosure of the information
"sought by the appellant, the CIC would follow the"
procedure prescribed under Section 11 of Act.
"7. On an appeal to the above order, by the impugned"
"judgment dated 20th April, 2012 the Division Bench of"
6
Page 6
Delhi High Court in LPA No.22 of 2012 dismissed the
same. The Division Bench held that the judgment of the
Delhi High Court Coordinate Bench in Arvind Kejriwal
case (supra) binds the Court on all fours to the said
case also.
The Division Bench further held that the procedure
under Section 11 (1) is mandatory and has to be
followed which includes giving of notice to the
concerned officer whose ACR was sought for. If that
"officer, pleads private defence such defence has to be"
examined while deciding the issue as to whether the
private defence is to prevail or there is an element of
overriding public interest which would outweigh the
private defence.
"8. Mr. Prashant Bhushan, learned counsel for the"
appellant submitted that the appellant wanted
"information in a separate file other than the ACR file,"
"namely, the “follow up action” which was taken by the"
Ministry of Finance about the remarks against
‘integrity’ in the ACR of the Member. According to
"him, it was different from asking the copy of the ACR"
"itself. However, we find that the learned Single Judge"
at the time of hearing ordered for production of the
original records and after perusing the same came to
7
Page 7
the conclusion that the information sought for was not
different or distinguished from ACR. The learned
Single Judge held that the said file contains
correspondence in relation to the remarks recorded by
the President of the CESTAT in relation to Ms. Jyoti
"Balasundaram, a Member and also contains the reasons"
why the said remarks have eventually been dropped.
"Therefore, recordings made in the said file constitute"
an integral part of the ACR record of the officer in
question.
Mr. Bhushan then submitted that ACR of a public
servant has a relationship with public activity as he
"discharges public duties and, therefore, the matter is"
of a public interest; asking for such information does
not amount to any unwarranted invasion in the privacy
of public servant. Referring to this Court’s decision
"in the case of State of U.P. vs. Raj Narain, AIR 1975"
"SC 865, it was submitted that when such information can"
"be supplied to the Parliament, the information relating"
to the ACR cannot be treated as personal document or
private document.
9. It was also contended that with respect to this
issue there are conflicting decisions of Division Bench
of Kerala High Court in Centre for Earth Sciences
8
Page 8
Studies vs. Anson Sebastian reported in 2010 ( 2) KLT
233 and the Division Bench of Delhi High Court in
Arvind Kejriwal vs. Central Public Information Officer
reported in AIR 2010 Delhi 216.
"10. Shri A. S. Chandiok, learned Additional Solicitor"
"General appearing for the respondents, in reply"
contended that the information relating to ACR relates
to the personal information and may cause unwarranted
"invasion of privacy of the individual, therefore,"
according to him the information sought for by the
appellant relating to analysis of ACR of Ms. Jyoti
Balasundaram is exempted under Section 8(1)(j) of the
RTI Act and hence the same cannot be furnished to the
appellant. He relied upon decision of this Court in
Girish Ramchandra Deshpande vs. Central Information
"Commissioner and others, reported in (2013) 1 SCC 212."
"11. We have heard the learned counsel for the parties,"
"perused the records, the judgements as referred above"
and the relevant provisions of the Right to Information
"Act, 2005."
12. Section 8 deals with exemption from disclosure of
"information. Under clause (j) of Section 8(1), there"
shall be no obligation to give any citizen information
which relates to personal information the disclosure of
9
Page 9
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 is satisfied that
the larger public interest justifies the disclosure of
such information. The said clause reads as follows:­
“Section 8 ­ Exemption from disclosure of
information.­ (1) Notwithstanding anything
"contained in this Act, there shall be no"
"obligation to give any citizen,­­"
xxx xxx xxx
xxx xxx xxx
(j) information which relates to personal
information the disclosure of which has no
"relationship to any public activity or interest,"
or which would cause unwarranted invasion of the
privacy of the individual unless the Central
Public Information Officer or the State Public
"Information Officer or the appellate authority,"
"as the case may be, is satisfied that the larger"
public interest justifies the disclosure of such
information:
Provided that the information which cannot be
denied to the Parliament or a State Legislature
shall not be denied to any person.”
13. On the other hand Section 11 deals with third
party information and the circumstances when such
information can be disclosed and the manner in which
"it is to be disclosed, if so decided by the Competent"
"Authority. Under Section 11(1), if the information"
relates to or has been supplied by a third party and
10
Page 10
"has been treated as confidential by the third party,"
and if the Central Public Information Officer or a
State Public Information Officer intends to disclose
any such information or record on a request made under
"the Act, in such case after written notice to the third"
"party of the request, the Officer may disclose the"
"information, if the third party agrees to such request"
or if the public interest in disclosure outweighs in
importance any possible harm or injury to the interests
of such third party. Section 11(1) is quoted
hereunder:
“Section 11 ­ Third party information.­ (1)
Where a Central Public Information Officer or a
"State Public Information Officer, as the case"
"may be, intends to disclose any information or"
"record, or part thereof on a request made under"
"this Act, which relates to or has been supplied"
by a third party and has been treated as
"confidential by that third party, the Central"
Public Information Officer or State Public
"Information Officer, as the case may be, shall,"
within five days from the receipt of the
"request, give a written notice to such third"
party of the request and of the fact that the
Central Public Information Officer or State
"Public Information Officer, as the case may be,"
"intends to disclose the information or record,"
"or part thereof, and invite the third party to"
"make a submission in writing or orally,"
regarding whether the information should be
"disclosed, and such submission of the third"
party shall be kept in view while taking a
decision about disclosure of information:
Provided that except in the case of trade or
"commercial secrets protected by law, disclosure"
may be allowed if the public interest in
disclosure outweighs in importance any possible
11
Page 11
harm or injury to the interests of such third
party.”
14. In Centre for Earth Sciences Studies vs. Anson
Sebastian reported in 2010(2) KLT 233 the Kerala High
Court considered the question whether the information
sought relates to personal information of other
"employees, the disclosure of which is prohibited"
under Section 8(1) (j) of the RTI Act. In that case
the Kerala High Court noticed that the information
sought for by the first respondent pertains to copies
of documents furnished in a domestic enquiry against
one of the employees of the appellant­organization.
Particulars of confidential reports maintained in
respect of co­employees in the above said case (all
of whom were Scientists) were sought from the
appellant­organisation. The Division Bench of Kerala
High Court after noticing the relevant provisions of
RTI Act held that documents produced in a domestic
enquiry cannot be treated as documents relating to
"personal information of a person, disclosure of which"
will cause unwarranted invasion of privacy of such
person. The Court further held that the confidential
reports of the employees maintained by the employer
cannot be treated as records pertaining to personal
12
Page 12
information of an employee and publication of the
same is not prohibited under Section 8(1) (j) of the
RTI Act.
15. The Delhi High Court in Arvind Kejriwal vs.
Central Public Information Officer reported in AIR
2010 Delhi 216 considered Section 11 of the RTI Act.
The Court held that once the information seeker is
"provided information relating to a third party, it is"
no longer in the private domain. Such information
seeker can then disclose in turn such information to
"the whole World. Therefore, for providing the"
information the procedure outlined under Section
11(1) cannot be dispensed with. The following was
the observation made by the Delhi High Court in
Arvind Kejriwal (supra):
"“22. Turning to the case on hand, the documents"
of which copies are sought are in the personal
files of officers working at the levels of
"Deputy Secretary, Joint Secretary, Director,"
Additional Secretary and Secretary in the
Government of India. Appointments to these posts
are made on a comparative assessment of the
relative merits of various officers by a
departmental promotion committee or a selection
"committee, as the case may be. The evaluation of"
the past performance of these officers is
contained in the ACRs. On the basis of the
comparative assessment a grading is given. Such
information cannot but be viewed as personal to
such officers. Vis­à­vis a person who is not an
employee of the Government of India and is
seeking such information as a member of the
"public, such information has to be viewed as"
13
Page 13
Constituting 'third party information'. This can
be contrasted with a situation where a
government employee is seeking information
"concerning his own grading, ACR etc. That"
obviously does not involve 'third party'
information.
"23. What is, however, important to note is that"
it is not as if such information is totally
exempt from disclosure. When an application is
"made seeking such information, notice would be"
issued by the CIC or the CPIOs or the State
"Commission, as the case may be, to such 'third"
"party' and after hearing such third party, a"
decision will be taken by the CIC or the CPIOs
or the State Commission whether or not to order
disclosure of such information. The third party
may plead a 'privacy' defence. But such defence
"may, for good reasons, be overruled. In other"
"words, after following the procedure outlined in"
"Section 11(1) of the RTI Act, the CIC may still"
decide that information should be disclosed in
public interest overruling any objection that
the third party may have to the disclosure of
such information.
"24. Given the above procedure, it is not"
possible to agree with the submission of Mr.
Bhushan that the word 'or' occurring in Section
"11(1) in the phrase information ""which relates"
"to or has been supplied by a third party"" should"
"be read as 'and'. Clearly, information relating"
to a third party would also be third party
information within the meaning of Section 11(1)
of the RTI Act. Information provided by such
third party would of course also be third party
information. These two distinct categories of
third party information have been recognized
under Section 11(1) of the Act. It is not
possible for this Court in the circumstances to
read the word 'or' as 'and'. The mere fact that
"inspection of such files was permitted, without"
following the mandatory procedure under Section
"11(1) does not mean that, at the stage of"
"furnishing copies of the documents inspected,"
"the said procedure can be waived. In fact, the"
procedure should have been followed even prior
"to permitting inspection, but now the clock"
cannot be put back as far as that is concerned.
14
Page 14
25. The logic of the Section 11(1) RTI Act is
plain. Once the information seeker is provided
"information relating to a third party, it is no"
longer in the private domain. Such information
seeker can then disclose in turn such
information to the whole world. There may be an
officer who may not want the whole world to know
why he or she was overlooked for promotion. The
defence of privacy in such a case cannot be
lightly brushed aside saying that since the
officer is a public servant he or she cannot
possibly fight shy of such disclosure. There may
be yet another situation where the officer may
have no qualms about such disclosure. And there
may be a third category where the credentials of
the officer appointed may be thought of as being
in public interest to be disclosed. The
importance of the post held may also be a factor
that might weigh with the information officer.
This exercise of weighing the competing
interests can possibly be undertaken only after
hearing all interested parties. Therefore the
procedure under Section 11(1) RTI Act.
"26. This Court, therefore, holds that the CIC"
was not justified in overruling the objection of
the UOI on the basis of Section 11(1) of the
RTI Act and directing the UOI and the DoPT to
provide copies of the documents as sought by Mr.
Kejriwal. Whatever may have been the past
practice when disclosure was ordered of
information contained in the files relating to
appointment of officers and which information
"included their ACRs, grading, vigilance"
"clearance etc., the mandatory procedure outlined"
under Section 11(1) cannot be dispensed with.
The short question framed by this Court in the
first paragraph of this judgment was answered in
the affirmative by the CIC. This Court reverses
the CIC's impugned order and answers it in the
negative.
27. The impugned order dated 12th June 2008 of
the CIC and the consequential order dated 19th
November 2008 of the CIC are hereby set aside.
The appeals by Mr. Kejriwal will be restored to
the file of the CIC for compliance with the
procedure outlined under Section 11(1) RTI Act
limited to the information Mr. Kejriwal now
seeks.”
15
Page 15
16. Recently similar issue fell for consideration
before this Court in Girish Ramchandra Deshpande v.
Central Information Commissioner and others reported in
(2013) 1 SCC 212. That was a case in which Central
Information Commissioner denied the information
pertaining to the service career of the third party to
the said case and also denied the details relating to
"assets, liabilities, moveable and immovable properties"
of the third party on the ground that the information
sought for was qualified to be personal information as
defined in clause (j) of Section 8(1) of the RTI Act.
In that case this Court also considered the question
"whether the orders of censure/punishment, etc. are"
personal information and the performance of an
"employee/officer in an organization, commonly known as"
Annual Confidential Report can be disclosed or not.
This Court after hearing the parties and noticing the
provisions of RTI Act held:
“11. The petitioner herein sought for copies of
"all memos, show­cause notices and"
censure/punishment awarded to the third
respondent from his employer and also details
viz. movable and immovable properties and also
"the details of his investments, lending and"
borrowing from banks and other financial
"institutions. Further, he has also sought for"
the details of gifts stated to have been
"accepted by the third respondent, his family"
members and friends and relatives at the
marriage of his son. The information mostly
sought for finds a place in the income tax
returns of the third respondent. The question
16
Page 16
that has come up for consideration is: whether
the abovementioned information sought for
qualifies to be “personal information” as
defined in clause (j) of Section 8(1) of the RTI
Act.
12. We are in agreement with the CIC and the
courts below that the details called for by the
petitioner i.e. copies of all memos issued to
"the third respondent, show­cause notices and"
"orders of censure/punishment, etc. are qualified"
to be personal information as defined in clause
(j) of Section 8(1) of the RTI Act. The
performance of an employee/officer in an
organisation is primarily a matter between the
employee and the employer and normally those
aspects are governed by the service rules which
fall under the expression “personal
"information”, the disclosure of which has no"
relationship to any public activity or public
"interest. On the other hand, the disclosure of"
which would cause unwarranted invasion of
"privacy of that individual. Of course, in a"
"given case, if the Central Public Information"
Officer or the State Public Information Officer
or the appellate authority is satisfied that the
larger public interest justifies the disclosure
"of such information, appropriate orders could be"
passed but the petitioner cannot claim those
details as a matter of right.
13. The details disclosed by a person in his
income tax returns are “personal information”
which stand exempted from disclosure under
"clause (j) of Section 8(1) of the RTI Act,"
unless involves a larger public interest and the
Central Public Information Officer or the State
Public Information Officer or the appellate
authority is satisfied that the larger public
interest justifies the disclosure of such
information.
14. The petitioner in the instant case has not
made a bona fide public interest in seeking
"information, the disclosure of such information"
would cause unwarranted invasion of privacy of
the individual under Section 8(1)(j) of the RTI
Act.
"15. We are, therefore, of the view that the"
petitioner has not succeeded in establishing
that the information sought for is for the
"larger public interest. That being the fact, we"
are not inclined to entertain this special leave
"petition. Hence, the same is dismissed.”"
17
Page 17
17. In view of the discussion made above and the
decision in this Court in Girish Ramchandra
"Deshpande(supra), as the appellant sought for"
inspection of documents relating to the ACR of the
"Member, CESTAT, inter alia, relating to adverse"
entries in the ACR and the ‘follow up action’ taken
"therein on the question of integrity, we find no reason"
to interfere with the impugned judgment passed by the
Division Bench whereby the order passed by the learned
"Single Judge was affirmed. In absence of any merit,"
the appeal is dismissed but there shall be no order as
to costs.
………..………………………………………..J.
(G.S. SINGHVI)
………………………………………………….J.
(SUDHANSU JYOTI
MUKHOPADHAYA)
"NEW DELHI,"
"APRIL 16, 2013."
18
Page 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
"Date of decision: 13th July, 2012"
+ LPA No.229/2011
% UNION PUBLIC SERVICE COMMISSION ....Appellant
Through: Mr. Naresh Kaushik & Ms. Aditi
"Gupta, Advs."
Versus
ANGESH KUMAR & ORS. ..... Respondents
"Through: Mr. Rajesh Kumar Tiwari,"
Respondent No.2 in person.
"Mr. B.V. Niren, Adv. for R-13."
AND
+ W.P.(C) NO.3316/2011
% DURGESH KUMAR TRIPATHI & ORS. ....Petitioners
"Through: Mr. Devendra Sharma, petitioner"
No.3 in person.
Versus
UNION PUBLIC SERVICE COMMISSION & ANR... Respondents
Through: Mr. Naresh Kaushik & Ms. Aditi
"Gupta, Advs."
"Mr. Mohit Jolly, Adv. for R-2."
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
LPA No.229/2011 & WP(C) No.3316/2011 Page 1 of 13
"RAJIV SAHAI ENDLAW, J."
1. LPA No.229/2011 impugns the order dated 04.02.2011of the learned
Single Judge in Review Petition No.51/2011 preferred by the respondents
seeking review of the order dated 13.01.2011 disposing of W.P.(C)
No.218/2011 preferred by the respondents.
2. The twelve respondents in LPA No.229/2011 had appeared in the
Civil Services Preliminary Examination held on 23.05.2010 by the appellant
Union Public Service Commission (UPSC) and were unsuccessful therein.
"They sought certain information under the Right to Information Act, 2005"
and which information was denied to them by the Public Information
"Officer of the appellant UPSC. Aggrieved therefrom, they filed W.P.(C)"
No.6931/2010 which was dismissed vide order dated 08.10.2010 on account
of pendency then of SLP No.23250/2008 preferred by the appellant UPSC
before the Supreme Court against the judgment dated 03.09.2008 of a
Division Bench of this Court in LPA No.313/2007 titled UPSC Vs. Shiv
Shambhu entailing the same question. The respondents thereafter filed SLP
No.32443/2010 to the Supreme Court. The Supreme Court vide order dated
"18.11.2010 dismissed SLP No.23250/2008 of the UPSC, for the reason of"
the change effected by the UPSC in the pattern of examination with effect
LPA No.229/2011 & WP(C) No.3316/2011 Page 2 of 13
from the year 2011. Thereafter the Supreme Court vide order dated
03.12.2010 disposed of the SLPNo.32443/2010 preferred by the respondents
observing that since SLP No.23250/2008 against the judgment dated
03.09.2008 of the Division Bench of this Court had been dismissed though
"as infructuous, the case of the respondents herein will also be governed by"
the said judgment dated 03.09.2008.
3. The respondents on the basis of said order dated 03.12.2010 of the
Supreme Court again sought the information from the appellant UPSC and
"upon not meeting with any success, filed W.P.(C) No.218/2011, from which"
"this appeal arises, seeking a direction to the appellant UPSC to disclose the"
following information:
(i) details of marks (raw and scaled marks) obtained by the
selected candidates in their respective optional subjects of the
"Civil Services Preliminary Examination, 2010;"
(ii) details of the marks (raw and scaled) obtained by the
respondents themselves in the said examination;
(iii) the cut off marks of each optional subject in the said
examination.
LPA No.229/2011 & WP(C) No.3316/2011 Page 3 of 13
4. The aforesaid writ petition was disposed of vide order dated
"13.01.2011 observing, finding and holding as under:"
(i) that in view of the respondents having earlier applied under the
RTI Act for the information and having thereafter preferred a
"writ petition in this Court and SLP in the Supreme Court, the"
respondents were not required to again follow the procedure
under the RTI Act;
"(ii) that the law having been settled by the Supreme Court, there"
was no need to relegate the respondents to the process under
the RTI Act;
(iii) On the plea of the counsel for the appellant UPSC that raw
marks were not available and thus could not be disclosed and
that model answers were available only for some of the
"questions, it was observed that whatsoever was not available"
with the UPSC need not be disclosed;
(iv) no prejudice would be caused to anyone by disclosure of the
result of the candidates who had qualified;
LPA No.229/2011 & WP(C) No.3316/2011 Page 4 of 13
(v) that the model answers as available with the UPSC were also
"liable to disclosure, in accordance with the various dictas on"
the subject.
The appellant UPSC was accordingly directed to make the disclosure.
5. The respondents filed an application for review of the aforesaid order
primarily challenging the statement of the counsel for the appellant UPSC
that raw marks and the model answers for all the questions were not
available. It was their contention that the appellant UPSC as per its rules
was required to maintain the same for the prescribed period and which
period had not expired.
6. The learned Single Judge vide impugned order dated 04.02.2011 on
"the said review application observed, found & held:"
(i) that the marks as appearing on the answer sheets are raw
marks;
(ii) that the answers sheets are required to be preserved for one
year and thus the raw marks ought to be available with the
UPSC;
(iii) the contention of the appellant UPSC that raw marks did not
subsist upon being scaled and thus could not be disclosed was
LPA No.229/2011 & WP(C) No.3316/2011 Page 5 of 13
rejected. It was held that the raw marks have to be necessarily
available;
(iv) that since all the questions in the examination were of objective
"type, there could be no possibility of the model answers of any"
of them being not available;
UPSC was accordingly directed to disclose the raw marks as well as
the model answers of the questions in the examination.
7. Notice of this appeal was issued and the operation of the order dated
04.02.2011 of the learned Single Judge stayed.
"8. W.P.(C) No.3316/2011 is filed, also seeking a direction to the UPSC"
to disclose the same information as subject matter of LPA No.229/2011
relating to the same examination and qua the nine petitioners therein. While
"the said petition was pending before the learned Single Judge, it was pointed"
out that the controversy therein was the same as in LPA No.229/2011.
Accordingly the said writ petition was transferred to this Bench and the
counsel for the petitioners in the writ petition has raised the same arguments
as the counsel for the respondents in the LPA.
"9. As would be apparent from the above, the respondents prior to filing"
the writ petition from which this appeal arises had filed a writ petition for
LPA No.229/2011 & WP(C) No.3316/2011 Page 6 of 13
the same relief but which writ petition was dismissed owing to the question
entailed therein pending consideration before the Supreme Court in SLP
No.23250/2008 preferred by the appellant; the respondents also had then
preferred SLP No.32443/2010 and which SLP as aforesaid was disposed of
with a direction that the respondents would be entitled to the same relief as
given by the Division Bench of this Court vide judgment dated 03.09.2008
in LPA No.313/2007. It thus becomes necessary to first examine the said
LPA No.313/2007. The same was preferred against the judgment dated
17.04.2007 of the Single Judge in W.P.(C) No.17583/2006. In the said writ
"petition also, the same disclosure as in the present proceedings was sought"
"from the UPSC, though pertaining to the Civil Services (Preliminary)"
"Examination, 2006 and UPSC had contested the demand for such disclosure"
on the same grounds as being urged herein.
"10. It is the case of UPSC, that the Civil Services Examination comprises"
"of two parts, i.e. the Preliminary Examination and the Main Examination"
which is followed by interview; that the Preliminary Examination is in the
nature of a screening test to select twelve to thirteen times the number of
vacancies in the order of merit; that the Preliminary Examination comprises
LPA No.229/2011 & WP(C) No.3316/2011 Page 7 of 13
"of two papers, one of General Studies which is compulsory and an optional"
paper from out of 23 subjects offered; that since different examinees opt for
"different optional paper, UPSC has developed a methodology to make the"
"marks obtained in each subject comparable; through this methodology,"
scaling of marks is done so that the marks obtained in different subjects are
comparable with each other; scientific formula is used for such scaling of
marks; said scientific formula has been further changed and modified by the
"experience, to suit the needs and requirement of UPSC; that insofar as the"
"marks of compulsory subject are concerned, no scaling is applied; that prior"
"to the examination, no cut offs can be presumed and the cut offs that are"
implemented are only post examination; the marks in the Preliminary
Examination are not counted in the Main Examination.
11. It is further the plea of UPSC that revealing the cut off marks and the
keys to the question papers would enable unscrupulous persons to engineer
and arrive at the scaling system which is kept secret by the UPSC; that if the
"scaling system adopted by the UPSC is disclosed, then the entire system"
would be undermined and defeat the selection.
LPA No.229/2011 & WP(C) No.3316/2011 Page 8 of 13
12. The learned Single Judge in judgment dated 17.04.2007 in W.P.(C)
"No.17583/2006 found, observed and held, that the UPSC in a counter"
affidavit filed in the Supreme Court had already disclosed the scaling
method adopted by it and thus the said scaling method could no longer be
said to be secret or confidential; that there was no merit in the contention of
UPSC that disclosure of cut off marks would undermine the selection
process; that the disclosure of cut off marks of one year would not effect the
examination of a subsequent year which is independent; that the data of one
"year has no bearing on the following years. Accordingly, holding that the"
scaling method already stood disclosed and there was no bar to the
"disclosure of the cut off marks and the model answers, direction for"
disclosure thereof was issued.
"13. UPSC, as aforesaid preferred LPA No.313/2007 against the aforesaid"
judgment and which was dismissed on 03.09.2008. The SLP
No.23250/2008 preferred by the UPSC to the Supreme Court has also been
dismissed though as infructuous but without setting aside the judgments
dated 17.04.2007 and 03.09.2008 (supra) of the Single Judge and the
"Division Bench of this Court. Rather, when SLP No.32443/2010 preferred"
LPA No.229/2011 & WP(C) No.3316/2011 Page 9 of 13
"by the respondents came up before the Supreme Court, the same was"
disposed of with a direction that the respondents shall be entitled to the
relief as given by the High Court in the said judgments.
"14. In the aforesaid factual scenario, we are unable to find any scope for"
further adjudication inasmuch as the Supreme Court has already directed the
information as aforesaid to be supplied to the respondents. Once it is held
"that the UPSC is bound to supply the said information, W.P.(C)"
No.3316/2011 will also have to be allowed inasmuch as the same
information is sought therein. Though undoubtedly the petitioners in
W.P.(C) No.3316/2011 ought to have first followed the procedure
prescribed under the RTI Act but the petition having been entertained and
having remained pending in this Court and this Court being required to
"adjudicate the controversy in any case in LPA No.229/2011, need is not felt"
to at this stage relegate the petitioners to following the procedure under the
RTI Act.
15. The counsel for the UPSC before us has also urged that raw marks are
an intermediary stage and ought not to be treated as information and only
after scaling / actualization can the marks scored be computed and UPSC is
not liable to disclose such intermediary marks. It is also argued that the
LPA No.229/2011 & WP(C) No.3316/2011 Page 10 of 13
counter affidavit in the Supreme Court on the basis whereof it has been held
"that the method of scaling already stands disclosed, does not in fact disclose"
the same and the scaling system is thus not in public domain.
"16. We are afraid, the latter of the aforesaid argument cannot be"
entertained at least before this Court. The Single Judge in judgment dated
17.04.2007 (supra) held that the method of scaling stood disclosed in the
counter affidavit in the Supreme Court and we do not find any argument to
have been raised by UPSC before the Division Bench that the method of
scaling had not been so disclosed. There is no discussion whatsoever in the
"judgment dated 03.09.2008 of the Division Bench in this regard. Again, if it"
was the case of UPSC that the method of scaling had not been disclosed and
"this Court had wrongly presumed the same to have been disclosed, the"
UPSC ought not to have got its SLP dismissed as infructuous and ought to
have got the said matter adjudicated by the Supreme Court. On the
"contrary, the Supreme Court by dismissal of the SLP of the UPSC and by"
order dated 03.12.2010 in the SLP of the respondents has expressly directed
the disclosure of the method of scaling. After the matter has been dealt with
"by the Supreme Court, through speaking order, it is not for this Court to re-"
examine the same.
LPA No.229/2011 & WP(C) No.3316/2011 Page 11 of 13
17. We are even otherwise of the view that there could be no secrecy or
confidentiality about the method of scaling / actualization adopted by an
examiner. The very objective of the RTI Act is transparency and
accountability. The counsel for the UPSC has been unable to show as to
how the disclosure of the scaling / actualization method prejudices the
examination or affects it competitiveness. The Supreme Court in
U.P.P.S.C. Vs. Subhash Chandra Dixit AIR (2004) SC 163 approved of the
"practice of scaling / actualization, though in the subsequent decision in"
"Sanjay Singh Vs. U.P.P.S.C. AIR (2007) SC 950, certain reservations were"
"expressed with respect thereto. Be that as it may, though the non-disclosure"
of the method devised for scaling / actualization till declaration of the result
"may be justified, it cannot be said to be justified after the result is declared."
The Supreme Court in The Institute of Chartered Accountants of India Vs.
Shaunak H. Satya (2011) 8 SCC 781 has held that the answer scripts and
the answer keys are liable to disclosure after the result of the examination
has been declared. If it were to be held that there is any secrecy /
"confidentiality about the raw marks and the method of scaling, the"
possibility of errors therein or the same being manipulated cannot be ruled
out. An examinee is entitled to satisfy himself / herself as to the fairness
LPA No.229/2011 & WP(C) No.3316/2011 Page 12 of 13
and transparency of the examination and the selection procedure and to
"maintain such fairness and transparency disclosure of raw marks, cut off"
marks and the scaling method adopted is a must.
18. We therefore do not find any merit in LPA No.229/2011and dismiss
"the same. Axiomatically, W.P.(C) No.3316/2011 is allowed and the UPSC"
is directed to within eight weeks hereof disclose the information sought
therein.
19. Though UPSC has indulged in re-litigation but giving benefit of
doubt to UPSC that the resistance to disclosure is an after effect of the pre-
"RTI era, we refrain from imposing any costs on UPSC."
"RAJIV SAHAI ENDLAW, J"
ACTING CHIEF JUSTICE
"JULY 13 , 2012"
‘gsr ’
LPA No.229/2011 & WP(C) No.3316/2011 Page 13 of 13
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9095 OF 2012
(Arising out of SLP(C) No.7529 of 2009)
Manohar s/o Manikrao Anchule ... Appellant
Versus
State of Maharashtra & Anr. ...
Respondents
J U D G M E N T
"Swatanter Kumar, J."
1. Leave granted.
2. The present appeal is directed against the judgment dated
"18th December, 2008 of the High Court of Bombay at Aurangabad"
vide which the High Court declined to interfere with the order
"dated 26th February, 2008 passed by the State Information"
"Commissioner under the provisions of the Right to Information Act,"
2005 (for short ‘the Act’).
1
Page 1
3. We may notice the facts in brief giving rise to the present
"appeal. One Shri Ram Narayan, respondent No.2, a political"
"person belonging to the Nationalist Congress Party, Nanded filed"
"an application on 3rd January, 2007, before the appellant who was"
a nominated authority under Section 5 of the Act and was
responsible for providing the information sought by the applicants.
This application was moved under Section 6(1) of the Act.
"4. In the application, the said respondent No.2 sought the"
following information:
“a. The persons those who are
appointed/selected through a reservation
"category, their names, when they have"
appointed on the said post.
b. When they have joined the said post.
c. The report of the Caste Verification
Committee of the persons those who
are/were selected from the reserved
category.
d. The persons whose caste certificate
is/was forwarded for the verification to the
caste verification committee after due
date. Whether any action is taken against
"those persons? If any action is taken, then"
the detail information should be given
within 30 days.”
2
Page 2
"5. The appellant, at the relevant time, was working as"
Superintendent in the State Excise Department and was
"designated as the Public Information Officer. Thus, he was"
discharging the functions required under the provisions of the Act.
"After receiving the application from Respondent No.2, the"
appellant forwarded the application to the concerned Department
"for collecting the information. Vide letter dated 19th January, 2007,"
the appellant had informed respondent No.2 that action on his
application has been taken and the information asked for has
been called from the concerned department and as and when the
"information is received, the application could be answered"
accordingly. As respondent No.2 did not receive the information in
"furtherance to his application dated 3rd January, 2007, he filed an"
"appeal within the prescribed period before the Collector, Nanded"
"on 1st March, 2007, under Section 19(1) of the Act. In the appeal,"
respondent No.2 sought the information for which he had
submitted the application. This appeal was forwarded to the office
of the appellant along with the application given by respondent
No.2. No hearing was conducted by the office of the Collector at
"Nanded. Vide letter dated 11th April, 2007, the then"
3
Page 3
"Superintendent, State Excise, Nanded, also designated as Public"
"Information Officer, further wrote to respondent No.2 that since he"
"had not mentioned the period for which the information is sought,"
it was not possible to supply the information and requested him to
furnish the period for which such information was required. The
"letter dated 11th April, 2007 reads as under :"
“... you have not mentioned the period of the
"information which is sought by you. Therefore, it"
is not possible to supply the information.
"Therefore, you should mention the period of"
information in your application so that it will be
convenient to supply the information.”
6. As already noticed there was no hearing before the Collector
and the appeal before the Collector had not been decided. It is
the case of the appellant that the communication from the
"Collector's office dated 4th March, 2007 had not been received in"
the office of the appellant. Despite issuance of the letter dated
"11th April, 2007, no information was received from respondent"
"No.2 and, thus, the information could not be furnished by the"
"appellant. On 4th April, 2007, the appellant was transferred from"
Nanded to Akola District and thus was not responsible for
performance of the functions of the post that he was earlier
4
Page 4
holding at Nanded and so also the functions of Designated Public
Information Officer.
"7. Respondent No.2, without awaiting the decision of the First"
"Appellate Authority (the Collector), filed an appeal before the"
State Information Commission at Aurangabad regarding non-
providing of the information asked for. The said appeal came up
for hearing before the Commission at Aurangabad who directed
issuance of the notice to the office of the State Excise at Nanded.
The Nanded office informed the appellant of the notice and that
"the hearing was kept for 26th February, 2008 before the State"
Information Commission at Aurangabad. This was informed to the
"appellant vide letter dated 12th February, 2008. On 25th February,"
"2008, the applicant forwarded an application through fax to the"
office of the State Information Commissioner bringing to their
notice that for official reasons he was unable to appear before the
Commissioner on that date and requested for grant of extension
of time for that purpose. Relevant part of the letter dated 25th
February 2008 reads as under:
"“...hearing is fixed before the Hon'ble Minister,"
State Excise M.S.Mumbai in respect of licence of
5
Page 5
CL-3 of Shivani Tq. and Dist. Akola. For that
"purpose it is necessary for the Superintendent,"
"State Excise, Akola for the said hearing."
"Therefore, it is not possible for him to remain"
present for hearing on 26.2.2008 before the
"Hon'ble Commissioner, State Information"
"Commission, Aurangabad. Therefore, it is"
requested that next date be given for the said
hearing.”
"8. The State Information Commission, without considering the"
application and even the request made by the Officer who was
present before the State Information Commission at the time of
"hearing, allowed the appeal vide its order dated 26th February,"
"2008, directing the Commissioner for State Excise to initiate"
action against the appellant as per the Service Rules and that the
action should be taken within two months and the same would be
reported within one month thereafter to the State Information
Commission. It will be useful to reproduce the relevant part of the
"order dated 26th February, 2008, passed by the State Information"
Commissioner:
“The applicant has prefer First appeal before
"the Collector on 1.3.2007, the said application"
was received to the State Excise Office on
4.3.2007 and on 11.4.2007 it was informed to
"the applicant, that he has not mentioned the"
specific period regarding the information. The
6
Page 6
"Public Information Officer, ought to have been"
informed to the applicant after receiving his first
application regarding the specific period of
"information but, here the public information"
"officer has not consider positively, the"
application of the applicant and not taken any
decision. On the application given by the
"applicant, the public information officer ought to"
have been informed to the applicant on or
"before 28.1.2007 and as per the said Act, 2005"
there is delay 73 days for informing the
"applicant and this shows that, the Public"
Information Officer has not perform his duty
which is casted upon him and he is negligent it
reveals after going through the documents by
"the State Commission. Therefore, it is order"
"that, while considering above said matter, the"
"concerned Public Information Officer, has made"
delay of 73 days for informing to the applicant
and therefore he has shown the negligence
"while performing his duty. Therefore, it is"
ordered to the Commissioner of State Excise
Maharashtra State to take appropriate action as
per the Service Rules and Regulation against
the concerned Public Information Officer within
"the two months from this order and thereafter,"
the compliance report will be submitted within
one month in the office of State Commission. As
the applicant has not mentioned the specific
period for information in his original application
"and therefore, the Public Information Officer"
was unable to supply him information. There is
no order to the Public Information Officer to give
information to the applicant as per his
application. It is necessary for all the applicant
those who want the information under the said
"Act, he should fill up the form properly and it is"
"confirmed that, whether he has given detail"
information while submitting the application as
7
Page 7
per the proforma and this would be confirm
"while making the application, otherwise the"
Public Information Officer will not in position to
give expected information to the applicant. At
"the time of filing the application, it is necessary"
"for the applicant, to fill-up the form properly and"
it was the prime duty of the applicant.
"As per the above mentioned, the second appeal"
filed by the applicant is hereby decided as
follows:
O R D E R
1. The appeal is decided.
2. As the concern Public Information Officer
has shown his negligence while performing
"his duty, therefore, the Commissioner of"
"State Excise, State of Maharashtra has to"
take appropriate action as per the service
rules within two months from the date of
"order and thereafter, within one month"
they should submit their compliance report
to the State Commission.”
9. The legality and correctness of the above order was
challenged by the appellant before the High Court by filing the
writ petition under Article 226 of the Constitution of India. The
appellant had taken various grounds challenging the correctness
"of this order. However, the High Court, vide its order dated 18th"
"December, 2008, dismissed the writ petition observing that the"
appellant ought to have passed the appropriate orders in the
8
Page 8
matter rather than keeping respondent No.2 waiting. It also
noticed the contention that the application was so general and
vague in nature that the information sought for could not be
"provided. However, it did not accept the same."
10. It is contended on behalf of the appellant that the order of
"the State Information Commission, as affirmed by the High Court,"
is in violation of the principles of natural justice and is contrary to
the very basic provisions of Section 20 of the Act. The order does
not satisfy any of the ingredients spelt out in the provisions of
Section 20(2) of the Act. The State Information Commission did
"not decide the appeal, it only directed action to be taken against"
the appellant though the appeal as recorded in the order had
"been decided. It can, therefore, be inferred that there is apparent"
non-application of mind.
11. The impugned orders do not take the basic facts of the case
into consideration that after a short duration the appellant was
transferred from the post in question and had acted upon the
"application seeking information within the prescribed time. Thus,"
9
Page 9
"no default, much less a negligence, was attributable to the"
appellant.
"12. Despite service, nobody appeared on behalf of the State"
Information Commission. The State filed no counter affidavit.
13. Since the primary controversy in the case revolves around
"the interpretation of the provisions of Section 20 of the Act, it will"
be necessary for us to refer to the provisions of Section 20 of the
Act at this stage itself. Section 20 reads as under:
“Section 20: Penalties:-(1) Where the Central
Information Commission or the State
"Information Commission, as the case may be, at"
the time of deciding any complaint or appeal is
of the opinion that the Central Public
Information Officer or the State Public
"Information Officer, as the case may be, has,"
"without any reasonable cause, refused to"
receive an application for information or has not
furnished information within the time specified
under sub-section (1) of section 7 or malafidely
denied the request for information or knowingly
"given incorrect, incomplete or misleading"
information or destroyed information which was
the subject of the request or obstructed in any
"manner in furnishing the information, it shall"
impose a penalty of two hundred and fifty
rupees each day till application is received or
"information is furnished, so however, the total"
amount of such penalty shall not exceed
twenty-five thousand rupees:
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Page 10
Provided that the Central Public Information
"Officer or the State Public Information Officer,"
"as the case may be, shall be given a reasonable"
opportunity of being heard before any penalty is
imposed on him:
Provided further that the burden of proving that
he acted reasonably and diligently shall be on
the Central Public Information Officer or the
"State Public Information Officer, as the case"
may be.
(2) Where the Central Information Commission
"or the State Information Commission, as the"
"case may be, at the time of deciding any"
complaint or appeal is of the opinion that the
Central Public Information Officer or the State
"Public Information Officer, as the case may be,"
has without any reasonable cause and
"persistently, failed to receive an application for"
information or has not furnished information
within the time specified under sub-section (1)
of Section 7 or malafidely denied the request for
"information or knowingly given incorrect,"
incomplete or misleading information or
destroyed information which was the subject of
"the request or obstructed in any manner in,"
"furnishing the information, it shall recommend"
for disciplinary action against the Central Public
Information Officer or the State Public
"Information Officer, as the case may be, under"
the service rules applicable to him.”
14. State Information Commissions exercise very wide and
certainly quasi judicial powers. In fact their functioning is akin to
the judicial system rather than the executive decision making
process.
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Page 11
15. It is a settled principle of law and does not require us to
discuss this principle with any elaboration that adherence to the
principles of natural justice is mandatory for such Tribunal or
bodies discharging such functions.
16. The State Information Commission has been vested with
wide powers including imposition of penalty or taking of
disciplinary action against the employees. Exercise of such power
is bound to adversely affect or bring civil consequences to the
"delinquent. Thus, the provisions relating to penalty or to penal"
consequences have to be construed strictly. It will not be open to
the Court to give them such liberal construction that it would be
beyond the specific language of the statute or would be in
violation to the principles of natural justice.
17. The State Information Commission is performing adjudicatory
functions where two parties raise their respective issues to which
the State Information Commission is expected to apply its mind
and pass an order directing disclosure of the information asked for
"or declining the same. Either way, it affects the rights of the"
parties who have raised rival contentions before the Commission.
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Page 12
"If there were no rival contentions, the matter would rest at the"
level of the designated Public Information Officer or immediately
thereafter. It comes to the State Information Commission only at
the appellate stage when rights and contentions require
adjudication. The adjudicatory process essentially has to be in
"consonance with the principles of natural justice, including the"
"doctrine of audi alteram partem. Hearing the parties, application"
of mind and recording of reasoned decision are the basic elements
of natural justice. It is not expected of the Commission to breach
"any of these principles, particularly when its orders are open to"
"judicial review. Much less to Tribunals or such Commissions, the"
Courts have even made compliance to the principle of rule of
natural justice obligatory in the class of administrative matters as
well. In the case of A.K. Kraipak & Ors. v. Union of India & Ors.
"[(1969) 2 SCC 262], the Court held as under :"
“17. … It is not necessary to examine those
decisions as there is a great deal of fresh
thinking on the subject. The horizon of natural
justice is constantly expanding…
The aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate
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Page 13
only in areas not covered by any law validly
made. In other words they do not supplant the
law of the land but supplement it…. The
concept of natural justice has undergone a
great deal of change in recent years. In the past
it was thought that it included just two rules
namely: (1) no one shall be a judge in his own
case (Nemo debet esse judex propria causa)
and (2) no decision shall be given against a
party without affording him a reasonable
hearing (audi alteram partem). Very soon
thereafter a third rule was envisaged and that is
that quasi-judicial enquiries must be held in
"good faith, without bias and not arbitrarily or"
unreasonably. But in the course of years many
more subsidiary rules came to be added to the
rules of natural justice. Till very recently it was
the opinion of the courts that unless the
authority concerned was required by the law
under which it functioned to act judicially there
was no room for the application of the rules of
natural justice. The validity of that limitation is
now questioned. If the purpose of the rules of
natural justice is to prevent miscarriage of
justice one fails to see why those rules should
be made inapplicable to administrative
enquiries. Often times it is not easy to draw the
line that demarcates administrative enquiries
from quasi-judicial enquiries. Enquiries which
were considered administrative at one time are
now being considered as quasi-judicial in
character. Arriving at a just decision is the aim
of both quasi-judicial enquiries as well as
administrative enquiries. An unjust decision in
an administrative enquiry may have more far
reaching effect than a decision in a quasi-
judicial enquiry. As observed by this Court in
Suresh Koshy George v. University of Kerala the
rules of natural justice are not embodied rules.
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Page 14
What particular rule of natural justice should
apply to a given case must depend to a great
extent on the facts and circumstances of that
"case, the framework of the law under which the"
enquiry is held and the constitution of the
Tribunal or body of persons appointed for that
purpose. Whenever a complaint is made before
a court that some principle of natural justice
had been contravened the court has to decide
whether the observance of that rule was
necessary for a just decision on the facts of that
case.
18. In the case of Kranti Associates (P) Ltd. & Ors. v. Masood
"Ahmed Khan & Ors. [(2010) 9 SCC 496], the Court dealt with the"
question of demarcation between the administrative orders and
quasi-judicial orders and the requirement of adherence to natural
justice. The Court held as under :
"“47. Summarising the above discussion, this"
Court holds:
(a) In India the judicial trend has always been
"to record reasons, even in administrative"
"decisions, if such decisions affect anyone"
prejudicially.
(b) A quasi-judicial authority must record
reasons in support of its conclusions.
(c) Insistence on recording of reasons is
meant to serve the wider principle of
justice that justice must not only be done it
must also appear to be done as well.
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Page 15
(d) Recording of reasons also operates as a
valid restraint on any possible arbitrary
exercise of judicial and quasi-judicial or
even administrative power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on
relevant grounds and by disregarding
extraneous considerations.
(f) Reasons have virtually become as
indispensable a component of a decision-
making process as observing principles of
"natural justice by judicial, quasi-judicial"
and even by administrative bodies.
(g) Reasons facilitate the process of judicial
review by superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned
decisions based on relevant facts. This is
virtually the lifeblood of judicial decision-
making justifying the principle that reason
is the soul of justice.
(i) Judicial or even quasi-judicial opinions
these days can be as different as the
judges and authorities who deliver them.
All these decisions serve one common
purpose which is to demonstrate by reason
that the relevant factors have been
objectively considered. This is important
for sustaining the litigants' faith in the
justice delivery system.
(j) Insistence on reason is a requirement for
both judicial accountability and
transparency.
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Page 16
(k) If a judge or a quasi-judicial authority is not
candid enough about his/her decision-
making process then it is impossible to
know whether the person deciding is
faithful to the doctrine of precedent or to
principles of incrementalism.
(l) Reasons in support of decisions must be
"cogent, clear and succinct. A pretence of"
reasons or “rubber-stamp reasons” is not
to be equated with a valid decision-making
process.
(m) It cannot be doubted that transparency is
the sine qua non of restraint on abuse of
judicial powers. Transparency in decision-
making not only makes the judges and
decision-makers less prone to errors but
also makes them subject to broader
scrutiny. (See David Shapiro in Defence of
Judicial Candor.)
(n) Since the requirement to record reasons
emanates from the broad doctrine of
"fairness in decision-making, the said"
requirement is now virtually a component
of human rights and was considered part
of Strasbourg Jurisprudence. See Ruiz
"Torija v. Spain EHRR, at 562 para 29 and"
"Anya v. University of Oxford, wherein the"
Court referred to Article 6 of the European
Convention of Human Rights which
"requires,"
“adequate and intelligent reasons must be
given for judicial decisions”.
(o) In all common law jurisdictions judgments
play a vital role in setting up precedents
"for the future. Therefore, for development"
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Page 17
"of law, requirement of giving reasons for"
the decision is of the essence and is
virtually a part of ‘due process’.”
19. The Court has also taken the view that even if cancellation of
the poll were an administrative act that per se does not repel the
application of the principles of natural justice. The Court further
said that classification of functions as judicial or administrative is a
"stultifying shibboleth discarded in India as in England. Today, in"
"our jurisprudence, the advances made by the natural justice far"
exceed old frontiers and if judicial creativity blights penumbral
"areas, it is also for improving the quality of Government in"
injecting fair play into its wheels. Reference in this regard can be
made to Mohinder Singh Gill v. Chief Election Commissioner
[(1978) 1 SCC 405].
20. Referring to the requirement of adherence to principles of
"natural justice in adjudicatory process, this Court in the case of"
"Namit Sharma v. Union of India [2012 (8) SCALE 593], held as"
under:
“97. It is not only appropriate but is a solemn
"duty of every adjudicatory body, including the"
"tribunals, to state the reasons in support of its"
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Page 18
decisions. Reasoning is the soul of a judgment
and embodies one of the three pillars on which
the very foundation of natural justice
jurisprudence rests. It is informative to the
"claimant of the basis for rejection of his claim,"
as well as provides the grounds for challenging
the order before the higher
"authority/constitutional court. The reasons,"
"therefore, enable the authorities, before whom"
"an order is challenged, to test the veracity and"
correctness of the impugned order. In the
"present times, since the fine line of distinction"
between the functioning of the administrative
and quasi-judicial bodies is gradually becoming
"faint, even the administrative bodies are"
required to pass reasoned orders. In this
"regard, reference can be made to the"
judgments of this Court in the cases of Siemens
Engineering & Manufacturing Co. of India Ltd. v.
Union of India & Anr. [(1976) 2 SCC 981]; and
"Assistant Commissioner, Commrcial Tax"
"Department Works Contract and Leasing, Kota"
v. Shukla & Brothers [(2010) 4 SCC 785].”
21. We may notice that proviso to Section 20(1) specifically
contemplates that before imposing the penalty contemplated
"under Section 20(1), the Commission shall give a reasonable"
"opportunity of being heard to the concerned officer. However,"
there is no such specific provision in relation to the matters
covered under Section 20(2). Section 20(2) empowers the Central
"or the State Information Commission, as the case may be, at the"
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Page 19
time of deciding a complaint or appeal for the reasons stated in
"that section, to recommend for disciplinary action to be taken"
against the Central Public Information Officer or the State Public
"Information Officer, as the case may be, under the relevant"
service rules. Power to recommend disciplinary action is a power
exercise of which may impose penal consequences. When such a
"recommendation is received, the disciplinary authority would"
conduct the disciplinary proceedings in accordance with law and
subject to satisfaction of the requirements of law. It is a
‘recommendation’ and not a ‘mandate’ to conduct an enquiry.
‘Recommendation’ must be seen in contradistinction to ‘direction’
or ‘mandate’. But recommendation itself vests the delinquent
Public Information Officer or State Public Information Officer with
consequences which are of serious nature and can ultimately
produce prejudicial results including misconduct within the
relevant service rules and invite minor and/or major penalty.
"22. Thus, the principles of natural justice have to be read into the"
provisions of Section 20(2). It is a settled canon of civil
jurisprudence including service jurisprudence that no person be
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Page 20
condemned unheard. Directing disciplinary action is an order in
the form of recommendation which has far reaching civil
consequences. It will not be permissible to take the view that
compliance with principles of natural justice is not a condition
precedent to passing of a recommendation under Section 20(2).
"In the case of Udit Narain Singh Malpharia v. Additional Member,"
"Board of Revenue, Bihar [AIR 1963 SC 786], the Court stressed"
upon compliance with the principles of natural justice in judicial or
quasi-judicial proceedings. Absence of such specific requirement
"would invalidate the order. The Court, reiterating the principles"
stated in the English Law in the case of King v. Electricity
"Commissioner, held as under :"
“The following classic test laid down by Lord
"Justice Atkin, as he then was, in King v."
Electricity Commissioners and followed by this
Court in more than one decision clearly brings
out the meaning of the concept of judicial act:
“Wherever anybody of persons having
legal authority to determine questions
"affecting the rights of subjects, and having"
"the duty to act judicially, act in excess of"
their legal authority they are subject to the
controlling jurisdiction of the King's Bench
Division exercised in these writs.”
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Page 21
Lord Justice Slesser in King v. London County
Council dissected the concept of judicial act laid
"down by Atkin, L.J., into the following heads in"
his judgment: “Wherever any body of persons
(1) having legal authority (2) to determine
questions affecting rights of subjects and (3)
having the duty to act judicially (4) act in excess
of their legal authority — a writ of certiorari may
issue.” It will be seen from the ingredients of
judicial act that there must be a duty to act
"judicially. A tribunal, therefore, exercising a"
judicial or quasi-judicial act cannot decide
against the rights of a party without giving him
a hearing or an opportunity to represent his
case in the manner known to law. If the
provisions of a particular statute or rules made
"thereunder do not provide for it, principles of"
natural justice demand it. Any such order made
without hearing the affected parties would be
void. As a writ of certiorari will be granted to
remove the record of proceedings of an inferior
tribunal or authority exercising judicial or quasi-
"judicial acts, ex hypothhesi it follows that the"
High Court in exercising its jurisdiction shall also
act judicially in disposing of the proceedings
before it.”
"23. Thus, the principle is clear and settled that right of hearing,"
"even if not provided under a specific statute, the principles of"
"natural justice shall so demand, unless by specific law, it is"
excluded. It is more so when exercise of authority is likely to vest
the person with consequences of civil nature.
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Page 22
"24. In light of the above principles, now we will examine whether"
there is any violation of principles of natural justice in the present
case.
"25. Vide letter dated 12th February, 2008, the appellant was"
"informed by the Excise Department, Nanded, when he was posted"
"at Akola that hearing was fixed for 25th February, 2008. He"
"submitted a request for adjournment which, admittedly, was"
received and placed before the office of the State Information
"Commission. In addition thereto, another officer of the"
"Department had appeared, intimated the State Information"
"Commission and requested for adjournment, which was declined."
It was not that the appellant had been avoiding appearance
before the State Information Commission. It was the first date of
"hearing and in the letter dated 25th February, 2008, he had given"
a reasonable cause for his absence before the Commission on 25th
"February, 2008. However, on 26th February, 2008, the impugned"
order was passed. The appellant was entitled to a hearing before
an order could be passed against him under the provisions of
Section 20(2) of the Act. He was granted no such hearing. The
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Page 23
State Information Commission not only recommended but
directed initiation of departmental proceedings against the
appellant and even asked for the compliance report. If such a
"harsh order was to be passed against the appellant, the least that"
was expected of the Commission was to grant him a
hearing/reasonable opportunity to put forward his case. We are of
the considered view that the State Information Commission should
have granted an adjournment and heard the appellant before
passing an order Section under 20(2) of the Act. On that ground
"itself, the impugned order is liable to be set aside. It may be"
usefully noticed at this stage that the appellant had a genuine
case to explain before the State Information Commission and to
establish that his case did not call for any action within the
"provisions of Section 20(2). Now, we would deal with the other"
contention on behalf of the appellant that the order itself does not
"satisfy the requirements of Section 20(2) and, thus, is"
"unsustainable in law. For this purpose, it is necessary for the"
Court to analyse the requirement and scope of Section 20(2) of
the Act. Section 20(2) empowers a Central Information
Commission or the State Information Commission :
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Page 24
(a) at the time of deciding any complaint or appeal;
(b) if it is of the opinion that the Central Public Information
"Officer or the State Public Information Officer, as the case"
"may be, has without any reasonable cause and persistently,"
failed to receive an application for information or has not
furnished information within the time specified under sub-
section (1) of Section 7 (i.e. 30 days);
(c) malafidely denied the request for information or intentionally
"given incorrect, incomplete or misleading information; or"
(d) destroyed information which was the subject of the request
or obstructed in any manner in furnishing the information;
(e) then it shall recommend for disciplinary action against the
stated persons under the relevant servicerules.
"26. From the above dissected language of the provision, it is"
clear that first of all an opinion has to be formed by the
Commission. This opinion is to be formed at the time of deciding
any complaint or appeal after hearing the person concerned. The
opinion formed has to have basis or reasons and must be relatable
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Page 25
to any of the defaults of the provision. It is a penal provision as it
vests the delinquent with civil consequences of initiation of and/or
even punishment in disciplinary proceedings. The grounds stated
in the Section are exhaustive and it is not for the Commission to
add other grounds which are not specifically stated in the
language of Section 20(2). The section deals with two different
"proceedings. Firstly, the appeal or complaint filed before the"
"Commission is to be decided and, secondly, if the Commission"
"forms such opinion, as contemplated under the provisions, then it"
can recommend that disciplinary proceedings be taken against
the said delinquent Central Public Information Officer or State
Public Information Officer. The purpose of the legislation in
requiring both these proceedings to be taken together is obvious
not only from the language of the section but even by applying
the mischief rule wherein the provision is examined from the very
purpose for which the provision has been enacted. While deciding
"the complaint or the appeal, if the Commission finds that the"
"appeal is without merit or the complaint is without substance, the"
information need not be furnished for reasons to be recorded. If
"such be the decision, the question of recommending disciplinary"
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Page 26
"action under Section 20(2) may not arise. Still, there may be"
another situation that upon perusing the records of the appeal or
"the complaint, the Commission may be of the opinion that none of"
"the defaults contemplated under Section 20(2) is satisfied and,"
"therefore, no action is called for. To put it simply, the Central or"
the State Commission have no jurisdiction to add to the
exhaustive grounds of default mentioned in the provisions of
Section 20(2). The case of default must strictly fall within the
specified grounds of the provisions of Section 20(2). This provision
has to be construed and applied strictly. Its ambit cannot be
permitted to be enlarged at the whims of the Commission.
"27. Now, let us examine if any one or more of the stated grounds"
under Section 20(2) were satisfied in the present case which
would justify the recommendation by the Commission of taking
disciplinary action against the appellant. The appellant had
received the application from respondent No.2 requiring the
"information sought for on 3rd January, 2007. He had, much within"
"the period of 30 days (specified under Section 7), sent the"
application to the concerned department requiring them to furnish
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Page 27
the requisite information. The information had not been received.
"May be after the expiry of the prescribed period, another letter"
was written by the department to respondent No.2 to state the
period for which the information was asked for. This letter was
"written on 11th April, 2007. To this letter, respondent No.2 did not"
"respond at all. In fact, he made no further query to the office of"
the designated Public Information Officer as to the fate of his
application and instead preferred an appeal before the Collector
and thereafter appeal before the State Information Commission.
"In the meanwhile, the appellant had been transferred in the"
"Excise Department from Nanded to Akola. At this stage, we may"
recapitulate the relevant dates. The application was filed on 3rd
"January, 2007, upon which the appellant had acted and vide his"
"letter dated 19th January, 2007 had forwarded the application for"
requisite information to the concerned department. The appeal
was filed by respondent no.2 under Section 19(1) of the Act before
"the Collector, Nanded on 1st March, 2007. On 4th March, 2007, the"
appeal was forwarded to the office of the Excise Department. On
"4th April, 2007, the appellant had been transferred from Nanded to"
"Akola. On 11th April, 2007, other officer from the Department had"
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Page 28
asked respondent no.2 to specify the period for which the
information was required. If the appellant was given an
"opportunity and had appeared before the Commission, he might"
have been able to explain that there was reasonable cause and he
had taken all reasonable steps within his power to comply with the
provisions. The Commission is expected to formulate an opinion
that must specifically record the finding as to which part of
"Section 20(2) the case falls in. For instance, in relation to failure"
to receive an application for information or failure to furnish the
"information within the period specified in Section 7(1), it should"
also record the opinion if such default was persistent and without
reasonable cause.
"28. It appears that the facts have not been correctly noticed and,"
"in any case, not in their entirety by the State Information"
Commission. It had formed an opinion that the appellant was
negligent and had not performed the duty cast upon him. The
Commission noticed that there was 73 days delay in informing the
"applicant and, thus, there was negligence while performing duties."
If one examines the provisions of Section 20(2) in their entirety
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Page 29
then it becomes obvious that every default on the part of the
concerned officer may not result in issuance of a recommendation
for disciplinary action. The case must fall in any of the specified
defaults and reasoned finding has to be recorded by the
Commission while making such recommendations. ‘Negligence’
per se is not a ground on which proceedings under Section 20(2)
of the Act can be invoked. The Commission must return a finding
"that such negligence, delay or default is persistent and without"
"reasonable cause. In our considered view, the Commission, in the"
"present case, has erred in not recording such definite finding. The"
"appellant herein had not failed to receive any application, had not"
failed to act within the period of 30 days (as he had written a
"letter calling for information), had not malafidely denied the"
"request for information, had not furnished any incorrect or"
"misleading information, had not destroyed any information and"
had not obstructed the furnishing of the information. On the
"contrary, he had taken steps to facilitate the providing of"
information by writing the stated letters. May be the letter dated
"11th April, 2007 was not written within the period of 30 days"
requiring respondent No.2 to furnish details of the period for which
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Page 30
such information was required but the fact remained that such
letter was written and respondent No.2 did not even bother to
respond to the said enquiry. He just kept on filing appeal after
"appeal. After April 4, 2007, the date when the appellant was"
"transferred to Akola, he was not responsible for the acts of"
omissions and/or commission of the office at Nanded.
29. Another aspect of this case which needs to be examined by
the Court is that the appeal itself has not been decided though it
has so been recorded in the impugned order. The entire
impugned order does not direct furnishing of the information
asked for by respondent No.1. It does not say whether such
information was required to be furnished or not or whether in the
"facts of the case, it was required of respondent No.2 to respond to"
"the letter dated 11th April, 2007 written by the Department to him."
All these matters were requiring decision of the Commission
before it could recommend the disciplinary action against the
"appellant, particularly, in the facts of the present case."
30. All the attributable defaults of a Central or State Public
Information Officer have to be without any reasonable cause and
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Page 31
"persistently. In other words, besides finding that any of the stated"
"defaults have been committed by such officer, the Commission"
has to further record its opinion that such default in relation to
receiving of an application or not furnishing the information within
the specified time was committed persistently and without a
reasonable cause. Use of such language by the Legislature clearly
shows that the expression ‘shall’ appearing before ‘recommend’
has to be read and construed as ‘may’. There could be cases
where there is reasonable cause shown and the officer is able to
demonstrate that there was no persistent default on his part
either in receiving the application or furnishing the requested
"information. In such circumstances, the law does not require"
recommendation for disciplinary proceedings to be made. It is not
the legislative mandate that irrespective of the facts and
"circumstances of a given case, whether reasonable cause is"
"shown or not, the Commission must recommend disciplinary"
action merely because the application was not responded to
within 30 days. Every case has to be examined on its own facts.
We would hasten to add here that wherever reasonable cause is
not shown to the satisfaction of the Commission and the
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Commission is of the opinion that there is default in terms of the
Section it must send the recommendation for disciplinary action in
accordance with law to the concerned authority. In such
"circumstances, it will have no choice but to send recommendatory"
report. The burden of forming an opinion in accordance with the
provisions of Section 20(2) and principles of natural justice lies
upon the Commission.
31. We are of the considered opinion that the appellant had
"shown that the default, if any on his part, was not without"
reasonable cause or result of a persistent default on his part. On
"the contrary, he had taken steps within his power and authority to"
provide information to respondent No.2. It was for the department
concerned to react and provide the information asked for. In the
"present case, some default itself is attributable to respondent"
No.2 who did not even care to respond to the letter of the
"department dated 11th April, 2007. The cumulative effect of the"
above discussion is that we are unable to sustain the order passed
"by the State Information Commission dated 26th February, 2008"
and the judgment of the High Court under appeal. Both the
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Page 33
judgments are e set aside and the appeal is allowed. We further
"direct that the disciplinary action, if any, initiated by the"
department against the appellant shall be withdrawn forthwith.
"32. Further, we direct the State Information Commission to"
decide the appeal filed by respondent No.2 before it on merits and
in accordance with law. It will also be open to the Commission to
hear the appellant and pass any orders as contemplated under
"Section 20(2), in furtherance to the notice issued to the appellant."
"However, in the facts and circumstances of the case, there shall"
be no orders as to costs.
"…………………………….,J."
[Swatanter Kumar]
"…………………………….,J."
[Madan B. Lokur]
New Delhi;
"December 13, 2012"
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