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

‘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  

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India; (b) for a direction to CBSE to appoint an independent examiner for re-

evaluating his answer-books and issue a fresh marks card on the basis of re-

evaluation;   (c)  for  a  direction  to CBSE to produce his  answer-books in  

regard to  the 2008 Secondary School  Examination so that  they could be  

properly reviewed and fresh marks card can be issued with re-evaluation  

marks;  (d) for quashing the communication of CBSE dated 12.7.2008 and  

for a direction to produce the answer-books into court for inspection by the  

first respondent. The respondent contended that section 8(1)(e) of Right to  

Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not  

applicable and relied upon the provisions of the RTI Act to claim inspection.  

4. CBSE resisted the petition. It contended that as per its Bye-laws, re-

evaluation  and inspection  of  answer-books  were  impermissible  and  what  

was permissible was only verification of marks. They relied upon the CBSE  

Examination  Bye-law  No.61,  relevant  portions  of  which  are  extracted  

below:  

“61. Verification of marks obtained by a Candidate in a subject  

(i)  A candidate  who has appeared at  an examination conducted by the  Board  may  apply  to  the  concerned  Regional  Officer  of  the  Board  for  verification of marks in any particular subject.  The verification will  be  restricted to checking whether all the answer's have been evaluated and  that there has been no mistake in the totalling of marks for each question  in that subject and that the marks have been transferred correctly on the  title  page  of  the  answer  book  and  to  the  award  list  and  whether  the  

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supplementary answer book(s) attached with the answer book mentioned  by  the  candidate  are  intact.  No  revaluation  of  the  answer  book  or  supplementary answer book(s) shall be done.

(ii) Such an application must be made by the candidate within 21 days  from the date of the declaration of result  for Main Examination and 15  days for Compartment Examination.

(iii)  All  such applications  must  be accompanied  by payment  of  fee  as  prescribed by the Board from time to time.

(iv) No candidate shall claim, or be entitled to, revaluation of his/her  answers or disclosure or inspection of  the answer book(s)  or other  documents.

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(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.

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62. Maintenance of Answer Books

The answer books shall be maintained for a period of three months and  shall thereafter be disposed of in the manner as decided by the Chairman  from time to time.”

(emphasis supplied)

CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated  

schools across the country appear in class X and class XII  examinations  

conducted by it and this generates as many as 60 to 65 lakhs of answer-

books;  that  as  per  Examination  Bye-law  No.62,  it  maintains  the  answer  

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books only for a period of three months after which they are disposed of. It  

was submitted that if candidates were to be permitted to seek re-evaluation  

of answer books or inspection thereof, it will create confusion and chaos,  

subjecting its elaborate system of examinations to delay and disarray. It was  

stated  that  apart  from  class  X  and  class  XII  examinations,  CBSE  also  

conducts  several  other  examinations (including the All  India Pre-Medical  

Test, All India Engineering Entrance Examination and Jawahar Navodaya  

Vidyalaya’s  Selection  Test).  If  CBSE  was  required  to  re-evaluate  the  

answer-books or grant inspection of answer-books or grant certified copies  

thereof, it  would interfere with its effective and efficient functioning, and  

will also require huge additional staff and infrastructure.  It was submitted  

that  the entire  examination system and evaluation by CBSE is done in a  

scientific and systemic manner designed to ensure and safeguard the high  

academic standards and at each level utmost care was taken to achieve the  

object of excellence, keeping in view the interests of the students. CBSE  

referred to the following elaborate procedure for evaluation adopted by it :

“The examination papers are set by the teachers with at least 20 years of  teaching  experience  and  proven  integrity.  Paper  setters  are  normally  appointed from amongst academicians recommended by then Committee  of courses of the Board.   Every paper setter is asked to set more than one  set of question papers which are moderated by a team of moderators who  are appointed from the academicians of the University or from amongst  the Senior Principals. The function of the moderation team is to ensure  correctness and consistency of different sets of question papers with the  curriculum and to assess  the difficulty  level  to cater  to  the students of  

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different schools in different categories. After assessing the papers from  every point of view, the team of moderators gives a declaration whether  the whole syllabus is covered by a set  of question papers,  whether the  distribution of difficulty level of all the sets is parallel and various other  aspects  to  ensure  uniform  standard.  The  Board  also  issues  detailed  instructions for the guidance of the moderators in order to ensure uniform  criteria for assessment.  

The evaluation system on the whole is well organized and fool-proof. All  the  candidates  are  examined  through  question  papers  set  by  the  same  paper setters. Their answer books are marked with fictitious roll numbers  so as to  conceal  their  identity.  The work of  allotment  of  fictitious  roll  number is carried out by a team working under a Chief Secrecy Officer  having  full  autonomy.  The  Chief  Secrecy  Officer  and  his  team  of  assistants  are  academicians  drawn  from  the  Universities  and  other  autonomous educational bodies not connected with the Board. The Chief  Secrecy Officer himself is usually a person of the rank of a University  professor.  No official  of  the  Board at  the  Central  or  Regional  level  is  associated with him in performance of the task assigned to him. The codes  of fictitious roll numbers and their sequences are generated by the Chief  Secrecy  Officer  himself  on  the  basis  of  mathematical  formula  which  randomize the real roll numbers and are known only to him and his team.  This ensures complete secrecy about the identification of the answer book  so much so, that even the Chairman, of the Board and the Controller of  Examination  of  the  Board  do  not  have  any  information  regarding  the  fictitious roll numbers granted by the Chief Secrecy Officer and their real  counterpart numbers.  

At  the  evaluation  stage,  the  Board  ensures  complete  fairness  and  uniformity by providing a marking scheme which is uniformity applicable  to  all  the  examiners  in  order  to  eliminate  the  chances  of  subjectivity.  These marking schemes are jointly prepared at the Headquarters of the  Board in Delhi by the Subject Experts of all the regions. The main purpose  of the marking scheme is to maintain uniformity in the evaluation of the  answer books.  

The  evaluation  of  the  answer  books  in  all  major  subjects  including  mathematics,  science  subjects  is  done  in  centralized  “on  the  spot”  evaluation  centers  where the  examiners get  answer  book in interrupted  serial orders. Also, the answer books are jumbled together as a result of  which the examiners, say in Bangalore may be marking the answer book  of a candidate who had his examination in Pondicherry, Goa, Andaman  and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka  itself  but  he has no way of knowing exactly which answer book he is  examining.  The  answer  books  having  been  marked  with  fictitious  roll  numbers  give  no  clue  to  any  examiner  about  the  state  or  territory  it  

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belongs to. It cannot give any clue about the candidate’s school or centre  of  examination.  The  examiner  cannot  have  any  inclination  to  do  any  favour to a candidate because he is unable to decodify his roll number or  to know as to which school, place or state or territory he belongs to.   

The examiners check all the questions in the papers thoroughly under the  supervision  of  head  examiner  and  award  marks  to  the  sub  parts  individually not collectively. They take full precautions and due attention  is given while assessing an answer book to do justice to the candidate. Re- evaluation is administratively impossible to be allowed in a Board where  lakhs of students take examination in multiple subjects.  

There are strict instructions to the additional head examiners not to allow  any shoddy work in evaluation and not to issue more than 20-25 answer  books for evaluation to an examiner on a single day. The examiners are  practicing teachers who guard the interest of the candidates. There is no  ground to believe that they do unjust  marking and deny the candidates  their due. It is true that in some cases totaling errors have been detected at  the stage of scrutiny or verification of marks. In order to minimize such  errors  and to  further  strengthen  and to  improve  its  system,  from 1993  checking of totals and other aspects of the answers has been trebled in  order to detect and eliminate all lurking errors.  

The results of all the candidates are reviewed by the Results Committee  functioning  at  the  Head  Quarters.  The  Regional  Officers  are  not  the  number of this Committee. This Committee reviews the results of all the  regions and in case it  decides to standardize the results in view of the  results shown by the regions over the previous years, it adopts a uniform  policy for the candidates of all the regions. No special policy is adopted  for  any region,  unless  there  are some special  reasons.  This  practice  of  awarding standardized marks in order to moderate the overall results is a  practice  common  to  most  of  the  Boards  of  Secondary  Education.  The  exact  number  of  marks  awarded  for  the  purpose  of  standardization  in  different  subjects  varies  from  year  to  year.  The  system  is  extremely  impersonalized and has no room for collusion infringement. It is in a word  a scientific system.”

CBSE  submitted  that  the  procedure  evolved  and  adopted  by  it  ensures  

fairness and accuracy in evaluation of  answer-books and made the entire  

process  as  foolproof  as  possible  and therefore  denial  of  re-evaluation  or  

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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.  

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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  

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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.

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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  

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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  

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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;   

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(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  

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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  

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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;

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(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:  

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“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  

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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  

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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).

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(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.  

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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  

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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 …  

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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  

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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 :

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“… 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-

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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  

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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  

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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.”  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

44

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;

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(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)

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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.  

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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  

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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’  

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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  

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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-

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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  

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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  

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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.  

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