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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Judgment 1: CBSE Vs. Aditya Bandopadhyay (2011) 8 SCC 497



Critical Analysis of Supreme Court Judgements on the RTI Act, 2005

By Shailesh Gandhi,

Former Central Information Commissioner

Judgment 1: CBSE Vs. Aditya Bandopadhyay (2011) 8 SCC 497

The main issue before the Court: Whether an examinee's (Students)
right to information under the RTI Act includes a right to inspect his
evaluated answer books in a public examination and taking certified
copies of the same. The examining body,-CBSE,- had claimed that it
held the information in a fiduciary relationship and hence this was
exempt under Section 8 (1) (e) of the RTI Act.

The observations of the Court: Para 18: “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 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.”

Para 23. “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.”

Para 26: “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….. Therefore it
cannot be said that the examining body holds the evaluated answer
books in a fiduciary relationship, qua the examiner.

Para 37. “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 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 Court held that: The Court ruled that corrected answer sheets
were information which should be provided to students who seek them
under RTI.

Our analysis of the judgment: The Court ordered the information to be
provided. It held that it was not exempt since the examining body did
not hold any information in a fiduciary relationship with the examiners
or examinees. Unfortunately, despite the Supreme Court’s observation at
para 18 that the provisions of the RTI Act will prevail over the
provisions of the bye-laws/rules, Public Information Officers (PIOs) of
most Courts refuse to give information in RTI to citizens regarding
various matters saying citizens should approach them under relevant
Court rules. They erroneously hold that the Court rules overrule the RTI

The observations made by Apex Court in Para 37 hereinabove are
unsubstantiated and wholly uncalled for. There was no cause or reason
for those observations. It does not befit the Supreme Court to make such
disparaging remarks in respect of a fundamental right of citizens. There
is not a shred of evidence that RTI is ‘obstructing the national
development and integration, or destroying the peace, tranquillity and
harmony amongst its citizens.’ To label citizens exercising their
fundamental right as oppressors and intimidators is unacceptable. These
observations from the apex court have been gleefully picked up by
public officials and quoted to curb the citizen’s fundamental right. RTI
has been recognised by the Supreme Court as being integral to Article
19 (1) (a) which states that all citizens shall have the right to freedom of
speech and expression subject only to the restrictions laid out in Article
19 (2) of the constitution. Section 8 (1) effectively covers these and goes
a little beyond. These remarks cannot be explained by any facts and runs
contrary to all the earlier judgments on Right to Information.
If it is argued that right to information should be related to transparency
and accountability and eradication of corruption, it will then be argued
that the freedom of speech and expression should be subjected to this
test. With these statements the court dealt a serious blow to the
fundamental right of citizens. This has warmed the hearts of many PIOs
and Information Commissioners, and they are now parroting these lines
to deny legitimate information.

As for the accusation of RTI taking up 75% of time, I did the following
calculation: By all accounts the total number of RTI applications in
India is less than 10 million annually. The total number of all
government employees is over 20 million. Assuming a 6 hour working
day for all employees for 250 working days it would be seen that there
are 30000 million working hours. Even if an average of 3 hours is spent
per RTI application 10 million applications would require 30 million
hours, which is 0.1% of the total working hours. This means it would
require 3.2% staff working for 3.2% of their time in furnishing
information to citizens. This too could be reduced drastically if
computerised working and automatic updating of information was done
as specified in Section 4 of the RTI Act.

If Section 4 of the Act is properly implemented as envisaged in the law,
the number of RTI applications would be less than 50% of the current
level. The Supreme Court did not comment on the lack of Section 4
compliance by all public authorities but decided to pass unwarranted and
unsubstantiated strictures against citizens using their fundamental right.
An extensive study done by Right to Information Assessment and
Analysis Group [RAAG] led by the scholarly and respected Shekhar
Singh, shows that –

1. Around 54% of the RTI applications sought information which
should have been displayed suo moto by the public authorities
under their obligations under Section 4;
About 20% of the RTI applicants were asking for information

2. Which should have been provided to them without their ever
having to file an application or even without using the RTI Act.
These applicants were seeking acknowledgement or response to
earlier, often long pending, missives, or seeking feedback about,
or an update on an ongoing interaction with the public authority.
The Central Secretariat Manual of Office Procedures, (Thirteenth
Edition, Ministry of Personnel, Public Grievances and Pensions,
Department of Administrative Reforms and Public Grievances.
September, 2010) mandates that proper replies to all communications
from citizens should be sent within 30 days. Thus only 26% of the
applications asked for information that was not required to be disclosed
proactively, either publicly or privately to the applicants. It would have
been appropriate if the Supreme Court had directed public authorities to
do their duty as per the RTI Act instead of castigating citizens using
their fundamental right as if they were interlopers or terrorists.




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