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Asha Kanta Sharma

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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Inst. Of Chartered Accountants Vs Shaunak H. Satya AIR 2011 SC 3336

ashakantasharma

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

By Shailesh Gandhi,
Former Central Information Commissioner

 

Judgment : Inst. Of Chartered Accountants Vs Shaunak H. Satya AIR 2011 SC 3336

The issue before the Court:

(i) Whether the instructions and solutions
to questions (if any) given by ICAI to examiners and moderators, are
intellectual property of the ICAI, disclosure of which would harm the
competitive position of third parties and therefore exempted under
section 8(1)(d) of the RTI Act ?

(ii) Whether providing access to the information sought (that is
instructions and solutions to questions issued by ICAI to examiners and
moderators) would involve an infringement of the copyright and
therefore the request for information is liable to be rejected under
section 9 of the RTI Act?

(iii) Whether the instructions and solutions to questions are information
made available to examiners and moderators in their fiduciary capacity
and therefore exempted under section 8(1)(e) of the RTI Act?

The observations of the Court: The Court first held at para 12 that
denial of information could not be justified under Section 8(1) (d). It
also held at para 13 and 14 that denial could not be justified under
Section 9. At para 16 and 17 it held that the information is exempt
under Section 8 (1) (e):

Para 16: “The instructions and `solutions to questions' issued to the
examiners and moderators in connection with evaluation of answer
scripts, as noticed above, is the intellectual property of ICAI. These are
made available by ICAI to the examiners and moderators to enable them
to evaluate the answer scripts correctly and effectively, in a proper
manner, to achieve uniformity and consistency in evaluation, as a large
number of evaluators and moderators are engaged by ICAI in
connection with the evaluation. The instructions and solutions to
questions are given by the ICAI to the examiners and moderators to be
held in confidence. The examiners and moderators are required to
maintain absolute secrecy and cannot disclose the answer scripts, the
evaluation of answer scripts, the instructions of ICAI and the solutions
to questions made available by ICAI, to anyone. The examiners and
moderators are in the position of agents and ICAI is in the position of
principal in regard to such information which ICAI gives to the
examiners and moderators to achieve uniformity, consistency and
exactness of evaluation of the answer scripts. When anything is given
and taken in trust or in confidence, requiring or expecting secrecy and
confidentiality to be maintained in that behalf, it is held by the recipient
in a fiduciary relationship.”

Para 17: “It should be noted that section 8(1)(e) uses the words
“information available to a person in his fiduciary relationship”.
Significantly section 8(1)(e) does not use the words “information
available to a public authority in its fiduciary relationship”. The use of
the words “person” shows that the holder of the information in a
fiduciary relationship need not only be a `public authority' as the word
`person' is of much wider import than the word `public authority'.
Therefore the exemption under section 8(1)(e) is available not only in
regard to information that is held by a public authority (in this case the
examining body) in a fiduciary capacity, but also to any information that
is given or made available by a public authority to anyone else for being
held in a fiduciary relationship. In other words, anything given and
taken in confidence expecting confidentiality to be maintained will be
information available to a person in fiduciary relationship. As a
consequence, it has to be held that the instructions and solutions to
questions communicated by the examining body to the examiners, head examiners and moderators, are information available to such persons in
their fiduciary relationship and therefore exempted from disclosure
undersection 8(1)(d) of RTI Act.”(appears to be a typing error and
should be 8 (1)(e).

Our analysis of the judgment: ICAI contended that instructions to
examiners and model answers cannot be disclosed since they were
exempt. Commission denied the information but the High Court
accepted the applicant’s right to get the information. The apex court
ruled out the applicability of Section 8 (1) (d) and Section 9. The
Supreme Court then upheld the denial of Model answers by the
examining body to the applicant holding it to be information held by
ICAI in a fiduciary relationship.

It is interesting to note that in paras 23 and 26 in the CBSE case referred
earlier the Supreme Court had stated that an examining body is not in a
fiduciary relationship with the examiners or examinees. If an examining
body is not holding information in a fiduciary relationship with
examiners or examinees then it cannot deny it by contending that the
model answers are held in a fiduciary capacity. The court has correctly
ruled that the examiners, moderators and head-examiners hold the
information in a fiduciary relationship. But that does not necessarily
mean that the examining body holds the information in a fiduciary
relationship as per its pronouncements in the CBSE case.
If a patient goes to a doctor and shares his information, the doctor holds
the information in a fiduciary relationship. But there is never any
expectation that the advice given by the doctor is held by the patient in a
fiduciary capacity. It appears there is a logical fallacy, since the
converse of any statement is not necessarily true.
 

satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf



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