Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors. RTI Act-

On 9 August, 2011, in the case of Central Board of Secondary Education & Anr. v. Aditya
Bandopadhyay & Ors. [Civil Appeal No.6454 of 2011], the Court inter alia considered the
questions: 1) Whether an examinee's right to information under the Right to Information Act,
2005 (RTI Act) includes a right to inspect his evaluated answer books in a public examination or
taking certified copies thereof; 2) 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 and 3) 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. The Court referred to the statement of
objects and reasons, the preamble and the relevant provisions of the RTI Act and answered the
said questions respectively as follows:-
(i)  “The evaluated answer-book is also an 'information' under the RTI Act.” “Having regard to
section 3 of the RTI Act, 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
examining bodies (Universities, Examination Boards, CBSC etc.) are neither  security nor
intelligence organisations and therefore the exemption under section 24 of the Act 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  of  the Act  will  not  apply.
Resultantly, unless the examining bodies are able to demonstrate that the evaluated answer-
10 COURT NEWS JULY - SEPTEMBER, 2011books fall under any of the categories of exempted 'information' enumerated in clauses (a) to (j)
of sub-section (1) section 8 of the Act, 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.”
(ii) “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.” “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.” Therefore “an examining body does not hold the evaluated answer-books in a
fiduciary relationship. Not being information available to an examining body in its fiduciary
relationship, the exemption under section 8(1)(e) is not available to the examining bodies with
reference to  evaluated answer-books. As no other exemption under section 8 is available in
respect of evaluated answer books, the examining bodies will have to permit inspection sought
by the examinees.”
(iii) “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/coordinators/scrutinisers/ head examiners are therefore 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.”  “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.”“The
RTI Act provides access to all information that is available and existing. If a public authority has
any information in the form of data or analysed data, or abstracts, or statistics, an applicant
COURT NEWS JULY - SEPTEMBER, 2011 11may 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 nonavailable information and then furnish it to an applicant.” “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  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 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.