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+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
+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
+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:
+10
+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.
+11
+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.
+12
+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
+13
+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.
+14
+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.
+15
+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.
+16
+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"
+17
+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"
+18
+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"
+19
+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
+20
+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.”
+21
+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.
+22
+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
+23
+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 :
+24
+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
+25
+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"
+26
+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
+27
+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"
+28
+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
+29
+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
+30
+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
+31
+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
+32
+Page 32
+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
+33
+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"
+34
+Page 34