Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7571 OF 2011 [Arising out of SLP (C) No.2040/2011]

The Institute of Chartered Accountants of India … Appellant

Vs.

Shaunak H.Satya & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN,J.

Leave granted.  

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

‘ICAI’)  is  a body corporate  established under section 3 of  the Chartered  

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

conduct  the  examination  of  candidates  for  enrolment  as  Chartered  

Accountants. The first respondent appeared in the Chartered Accountants’  

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

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

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

verification in accordance with the provisions of the Chartered Accountants  

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

answerscripts. The appellant informed the first respondent accordingly.

3. On  18.1.2008  the  appellant  submitted  an  application  seeking  the  

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

2005 (‘RTI Act’ for short) :

“1) Educational qualification of the examiners & Moderators with subject  wise classifications. (you may not give me the names of the examiners &  moderators).

2) Procedure established for evaluation of exam papers.

3) Instructions issued to the examiners, and moderators oral as well as  written if any.

4) Procedure established for selection of examiners & moderators.

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

6) Remuneration paid to the examiners & moderators.

7) Number of students appearing for exams at all levels in the last 2 years  (i.e. PE1/PE2/PCC/CPE/Final with break up)

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

9)  From  the  number  of  students  that  failed  in  the  last  2  years  (i.e.  PE1/PE2/PCC/CPE/Final  with  break  up)  from  the  above,  how  many  students opted for verification of marks as per regulation 38.

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

11) Number of students whose marks were positively changed out of those  students that opted for verification of marks.

12) Educational qualifications of the persons performing the verification  of marks under Regulation 38 & remuneration paid to them.

13) Number of times that the council has revised the marks of any  candidate, or any class of candidates, in accordance with regulation  

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39(2)  of  the  Chartered  Accountants  Regulations,  1988,  the  criteria  used for such discretion, the quantum of such revision, the quantum  of such revision, the authority that decides such discretion, and the  number of students along with the quantum of revision affected by  such  revision  in  the  last  5  exams,  held  at  all  levels  (i.e.  PE1/PE2/PCC/CPE/Final with break up).”   

(emphasis supplied)

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

responses/information in response to the 13 queries :

“1. Professionals, academicians and officials with relevant academic and  practical experience and exposure in relevant and related fields.

2&3.  Evaluation  of  answer  books  is  carried  out  in  terms  of  the  guidance  including  instructions  provided  by  Head  Examiners  appointed  for  each  subject(s).  Subsequently,  a  review  thereof  is  undertaken for the purpose of moderators.  

4.  In  terms  of  (1)  above,  a  list  of  examiners  is  maintained  under  Regulation 42 of the Chartered Accountants Regulations, 1988. Based on  the performance of the examiners, moderators are appointed from amongst  the examiners.

5. Solutions are given in confidence of examiners for the purpose of  evaluation.  Services  of  moderators  are  utilized  in  our  context  for  paper setting.

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

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

Month  &  Year

Number of students Appeared

PE-I PE-II PCC CPE* FINAL Nov.,2005 16228 47522 Not held Not held 28367 May,2006 32215 49505 Not held Not held 26254 Nov.,2006 16089 49220 Not held 27629 24704 May,2007 6194 56624 51 42910 23490

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

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8. Since such a data is not compiled,  it is regretted that the number of  students who passed Final Examination at the 1st attempt cannot be made  available.

9.  The number  of  students  who applied  for  the  verification  of  answer  books is as follows:-

Month  &  Year

Number of students who applied for verification from  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  &  Year

Number of students who applied for verification from  among the failed candidates* PE-I PE-II PCC CPE FINAL

Nov.,2005 14 40 Not held Not held 37 May,2006 24 86 Not held Not held 30 Nov.,2006 07 61 Not held 02 35 May,2007 03 56 Nil Nil 27

* This figure may contain some pass candidates also.

12. Independent  persons  such  as  retired  Govt.  teachers/Officers  are  assigned  the  task  of  verification  of  answer  books  work.  A  token  

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

13. The Examination Committee in terms of Regulation 39(2) has the  authority to revise the marks based on the findings of the Head  Examiners  and  incidental  information  in  the  knowledge  of  the  Examination  Committee,  in  its  best  wisdom.  Since  the  details  sought  are  highly  confidential  in  nature  and there  is  no  larger  public  interest  warrants  disclosure,  the  same  is  denied  under  Section 8(1)(e) of the Right to Information Act, 2005.”

(emphasis supplied)

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

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

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

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

second appeal before the Central Information Commission (for short ‘CIC’)  

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

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

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

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

to queries 3,5 and 13.

“Re: Query No.3.  

Decision:

This  request  of  the  Appellant  cannot  be without  seriously and perhaps  irretrievably compromising the entire examination process. An instruction  issued  by  a  public  authority  –  in  this  case,  examination  conducting  authority – to its examiners is strictly confidential.  There is an implied  contract  between the  examiners and the examination  conducting public  

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authority. It would be inappropriate to disclose this information. This item  of information too, like the previous one, attracts section 8(1)(d) being the  intellectual  property  of  the  public  authority  having  being  developed  through  careful  empirical  and  intellectual  study  and  analysis  over  the  years. I, therefore, hold that this item of query attracts exemption under  section 8(1)(e) as well as section 8(1)(d) of the RTI Act.  

Re : Query No.5.  

Decision:

Respondents have explained that what they provide to the examiners is  “solutions” and not “model answers” as assumed by the appellant. For the  aid of the students and examinees, “suggested answers” to the questions in  an exam are brought out and sold in the market.  

It would be wholly inappropriate to provide to the students the solutions  given to the questions only for the exclusive use of the examiners and  moderators.  Given the confidentiality  of interaction  between the public  authority  holding  the  examinations  and  the  examiners,  the  “solutions”  qualifies to be items barred by section 8(1)(e) of the RTI Act. This item of  information also attracts  section 8(1)(d) being the exclusive intellectual  property  of  the  public  authority.  Respondents  have  rightly  advised  the  appellant to secure the “suggested answers” to the questions from the open  market, where these are available for sale.

Re : Query No.13.  

Decision:

I find no infirmity in the reply furnished to the appellant. It is a categorical  statement and must be accepted as such. Appellant seems to have certain  presumptions  and  assumptions  about  what  these  replies  should  be.  Respondents are not obliged to cater to that. It is therefore held that there  shall  be  no  further  disclosure  of  information  as  regards  this  item  of  query.”

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

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

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

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dated 30.11.2010 and directed  the appellant  to supply the  information in  

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

“According to the Central Information Commission the solutions which  have been supplied by the Board to the examiners are given in confidence  and therefore, they are entitled to protection under Section 8(1)(e) of the  RTI Act. Section 8(1)(e) does not protect confidential information and the  claim  of  intellectual  property  has  not  made  by  the  respondent  No.2  anywhere.  In  the  reply  it  is  suggested  that  the  suggested  answers  are  published and sold in open market by the Board. Therefore, there can be  no confidentiality about suggested answers. It is no where explained what  is the difference between the suggested answers and the solutions. In our  opinion, the orders of both Authorities in this respect also suffer from non- application of mind and therefore they are liable to be set aside. We find  that the right given under the Right to Information Act has been dealt with  by the Authorities under that Act in most casual manner without properly  applying their minds to the material on record. In our opinion, therefore,  information sought against queries Nos.3,5 and 13 could not have been  denied by the Authorities to the petitioner. The principal defence of the  respondent No.2 is that the information is confidential. Till the result of  the examination is declared, the information sought by the petitioner has to  be treated as confidential, but once the result is declared, in our opinion,  that  information cannot  be treated as confidential.  We were not  shown  anything  which  would  even  indicate  that  it  is  necessary  to  keep  the  information in relation to the examination which is over and the result is  also declared as confidential.”   

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

special  leave.  The  appellant  submitted  that  it  conducts  the  following  

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

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

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

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

Chartered  Accountant  only  after  passing  the  common  proficiency  test,  

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professional  educational  examination-II/professional  competence  

examination and final examination. The number of candidates who applied  

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

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

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

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

following elaborate system with established procedures in connection with  

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

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

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

“Chartered Accountants with a standing of minimum of 5-7 years in the  profession  or  teachers  with  a  minimum  experience  of  5-7  years  in  university education system are empanelled as examiners of the Institute.  The eligibility criteria to be empanelled as examiner for the examinations  held in November, 2010 was that a chartered accountant with a minimum  of 3 years’ standing, if in practice, or with a minimum of 10 yeas standing,  if in service and University lecturers with a minimum of 5 years’ teaching  experience at  graduate/post  graduate level  in the relevant subjects  with  examiner ship experience of 5 years. The said criteria is continued to be  followed. The bio-data of such persons who wish to be empanelled are  scrutinized by the Director of Studies of the Institute in the first instance.  Thereafter, Examination Committee considers each such application and  takes a decision thereon. The examiners, based on their performance and  experience  with  the  system  of  the  ICAI,  are  invited  to  take  up  other  assignments of preparation of question paper, suggested solution, marking  scheme,  etc.  and  also  appointed  as  Head  Examiners  to  supervise  the  evaluation carried out by the different examiners in a particular subject  from time to time.  

A question paper and its solution are finalized by different experts in the  concerned subject at 3 stages. In addition, the solution is also vetted by  Director of Studies of the Institute after the examination is held and before  the  evaluation  of  the  answer  sheets  are  carried  out  by  examiners.  All  

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possible  alternate  solutions  to  a  particular  question  as  intimated  by  different examiners in a subject  are also included in the solution. Each  examiner in a particular subject is issued detailed instructions on marking  scheme  by  the  Head  Examiners  and  general  guidelines  for  evaluation  issued  by  the  ICAI.  In  addition,  performance  of  each  examiner,  to  ascertain  whether  the said examiner  has complied with the instructions  issued as also the general guidelines of the Institute,  is assessed by the  Head Examiner at  two stages before the declaration of result.  The said  process has been evolved based on the experience gained in the last 60  years of conducting examinations and to ensure all possible uniformity in  evaluation  of  answer  sheets  carried  out  by  numerous  examiners  in  a  particular subject and to provide justice to the candidates.  

The examination process/procedure/systems of the ICAI are well in place  and have been evolved over several decades out of experience gained. The  said process/procedure/systems have adequate checks to ensure fair results  and also ensure that due justice is done to each candidate and no candidate  ever suffers on any count.”

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

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

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

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

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

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

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

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

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

consideration:

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

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

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

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

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

instructions  and solutions  to  questions  issued  by  ICAI  to  examiners  and  

moderators) would involve an infringement of the copyright and therefore  

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

Act?

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

made available to examiners and moderators in their fiduciary capacity and  

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

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

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

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

1988?

Re: Question (i)

10. The  term  ‘intellectual  property’  refers  to  a  category  of  intangible  

rights  protecting  commercially  valuable  products  of  human  intellect  

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

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

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

papers,  instructions  regarding  evaluation  and  solutions  to  questions  (or  

model  answers)  which  are  furnished  to  examiners  and  moderators  in  

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

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

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

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

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

standard communication sent by ICAI in that behalf:  

“The  Council  is  anxious  to  prevent  the  unauthorized  circulation  of  Question Papers set for the Chartered Accountants Examinations as well  as the solutions thereto. With that object in view, the Council proposes to  reserve all copy-rights in the question papers as well as solutions. In order  to enable the Council to retain the copy-rights, it has been suggested that it  would be advisable to obtain a specific assignment of any copy-rights or  rights of publication that you may be deemed to possess in the questions  set by you for the Chartered Accountants Examinations and the solutions  thereto in favour of the Council. I have no doubt that you will appreciate  that this is merely a formality to obviate any misconception likely to arise  later on.”

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

assigning their copyrights in the question papers and solutions prepared by  

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

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

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

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

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

would harm the competitive position of all other candidates who participate  

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

squarely attracted.

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

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

instructions relating to evaluation and therefore the said material constitute  

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

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

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

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

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

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

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

the competitive position of any third party.  

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

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

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

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

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

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

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

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

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

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

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

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

examination  conducted  by  the  appellant  cannot  be  disclosed  before  the  

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

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

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

citizen  any  information  relating  to  question    papers,  solutions/model  

answers and instructions relating to a particular examination before the date  

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

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

regard  to  any  particular  examination,  would  not  harm  the  competitive  

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

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

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voluntarily  publishes  the  “suggested  answers”  in  regard  to  the  question  

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

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

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

instructions  if  any  given  to  the  examiners  and  moderators  after  the  

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

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

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

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

come.  

Re : Question (ii)

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

Information Officer may reject a request for information where providing  

access  to  such  information  would  involve  an  infringement  of  copyright  

subsisting in a person other than the State. The word ‘State’ used in section  

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

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

Article 12 of the Constitution. The reason for using the word ‘State’ and not  

‘public  authority’  in  section  9  of  RTI  Act  is  apparently  because  the  

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definition of  ‘public  authority’  in the Act is  wider than the definition of  

‘State’  in  Article  12,  and  includes  even  non-government  organizations  

financed  directly  or  indirectly  by  funds  provided  by  the  appropriate  

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

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

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

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

‘State’.  The  information  sought  is  a  material  in  which  ICAI  claims  a  

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

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

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

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

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

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

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

disclosure under section 9 of the RTI Act.

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

inapplicable.  The  words  ‘infringement  of  copyright’  have  a  specific  

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

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

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

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

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

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

Re : Question (iii)

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

information  sought  being  an  information  available  to  a  person  in  his   

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

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

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

words  information  available  to  a  person  in  his  fiduciary  capacity and  

observed thus:  

“But  the  words  ‘information  available  to  a  person  in  his  fiduciary  relationship’ are used in section 8(1)(e) of RTI Act in its normal and well  recognized  sense,  that  is  to  refer  to  persons  who  act  in  a  fiduciary  capacity, with reference to a specific beneficiary or beneficiaries who are  to be expected to be protected or benefited by the actions of the fiduciary –  a trustee with reference to the beneficiary of the trust,  a guardian with  reference to a minor/physically/infirm/mentally challenged, a parent with  reference to a child, a lawyer or a chartered accountant with reference to a  client,  a  doctor  or  nurse  with  reference  to  a  patient,  an  agent  with  reference  to  a  principal,  a  partner  with  reference  to  another  partner,  a  director of a company with reference to a share-holder, an executor with  reference to a legatee, a receiver with reference to the parties to a lis, an  employer  with  reference  to the  confidential  information  relating  to  the  

16

employee,  and  an  employee  with  reference  to  business  dealings/transaction of the employer.”

16. The instructions and ‘solutions to questions’ issued to the examiners  

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

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

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

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

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

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

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

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

moderators are required to maintain absolute secrecy and cannot disclose the  

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

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

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

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

and  moderators  to  achieve  uniformity,  consistency  and  exactness  of  

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

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

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

relationship.

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

available  to  a  person  in  his  fiduciary  relationship. Significantly  section  

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

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

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

‘public authority’ as the word ‘person’ is of much wider import than the  

word ‘public authority’.  Therefore the exemption under section 8(1)(e) is  

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

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

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

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

and taken in confidence expecting confidentiality to be maintained will be  

information  available  to  a  person  in  fiduciary  relationship.  As  a  

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

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

moderators,  are  information  available  to  such  persons  in  their  fiduciary  

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

RTI Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

equally  important  public  interests  including  efficient  functioning  of  the  

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

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

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

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

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

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

affect  other  public  interests  which  include  efficient  functioning  of  the  

governments,  optimum use of limited fiscal resources and preservation of  

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

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

achieve  the  second  objective.  Therefore  when  section  8  exempts  certain  

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

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

other  public  interests  essential  for  the  fulfilment  and  preservation  of  

democratic ideals. Therefore in dealing with information not falling under  

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

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

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

attains  a  fine  balance  between  its  goal  of  attaining  transparency  of  

information and safeguarding the other public interests.  

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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  

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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  

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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  

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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.”

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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  

25

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  

26

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  

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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  

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

information which may not  have a bearing on accountability  or  reducing  

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

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

for  information  does  not  reach  unmanageable  proportions  affecting  other  

public interests, which include efficient operation of public authorities and  

government,  preservation  of  confidentiality  of  sensitive  information  and  

optimum use of limited fiscal resources.  

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

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

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

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

purpose of making revisions under Regulation 39(2).

.………………………J.   (R V Raveendran)

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

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