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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Kerala Public Service Commission Versus State Information Commission AIR 2016 SC 711

ashakantasharma

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

By Shailesh Gandhi,
Former Central Information Commissioner

Judgment No: - Kerala Public Service Commission Versus State Information Commission AIR 2016 SC 711

Issue before the Court:
In this case the question which arose was whether respondents are
entitled to the scanned copies of their answer sheet, tabulation-sheet
containing interview marks; and if they are entitled to know the names
of the examiners who have evaluated the answer sheet.

Observation of Kerala High Court justifying the disclosure of
identity of examiners

Para 7:

17. We shall now examine the next contention of PSC that there is a
fiduciary relationship between it and the examiners and as a
consequence, it is eligible to claim protection from disclosure, except
with the sanction of the competent authority, as regards the identity of
the examiners as also the materials that were subjected to the
examination. We have already approved TREESA and the different
precedents and commentaries relied on therein as regards the concept of
fiduciary relationship. We are in full agreement with the law laid by the
Division Bench of this Court in Centre of Earth Science Studies (supra),
that S.8 (1)(e) deals with information available with the person in his
fiduciary relationship with another; that information under this head is
nothing but information in trust, which, but for the relationship would
not have been conveyed or known to the person concerned. What is it
that the PSC holds in trust for the examiners? Nothing. At the best, it
could be pointed out that the identity of the examiners has to be
insulated from public gaze, having regard to issues relatable to
vulnerability and exposure to corruption if the identities of the
examiners are disclosed in advance. But, at any rate, such issues would
go to oblivion after the conclusion of the evaluation of the answer
scripts and the publication of the results. Therefore, it would not be in
public interest to hold that there could be a continued secrecy even as
regards the identity of the examiners. Access to such information,
including as to the identity of the examiners, after the examination and
evaluation process are over, cannot be shied off under any law or
avowed principle of privacy.

Important observations of the Apex Court

In so far as disclosure as to information about the information of
answer sheets and details of the interview marks, the observations
of the Apex Court are as under

Para 6: So far as the information sought for by the respondents with
regard to the supply of scanned copies of his answer-sheet of the written
test, copy of the tabulation sheet and other information, we are of the
opinion that the view taken in the impugned judgment with regard to the
disclosure of these information, do not suffer from error of law and the
same is fully justified.
In so far as disclosure of names of examiners are concerned the observations of the Apex Court are as under

Para 7: The view taken by the Kerala High Court holding that no
fiduciary relationship exists between the University and the Commission
and the examiners appointed by them cannot be sustained in law.

Para 8: We do not find any substance in the reasoning given by the
Kerala High Court on the question of disclosure of names of the
examiners.

Para 9: In the present case, the PSC has taken upon itself in appointing
the examiners to evaluate the answer papers and as such, the PSC and
examiners stand in a principal-agent relationship. Here the PSC in the
shoes of a Principal has entrusted the task of evaluating the answer
papers to the Examiners. Consequently, Examiners in the position of
agents are bound to evaluate the answer papers as per the instructions
given by the PSC. As a result, a fiduciary relationship is established
between the PSC and the Examiners. Therefore, any information shared
between them is not liable to be disclosed. Furthermore, the information
seeker has no role to play in this and we don t see any logical reason as
to how this will benefit him or the public at large. We would like to
point out that the disclosure of the identity of Examiners is in the least
interest of the general public and also any attempt to reveal the examiner
s identity will give rise to dire consequences. Therefore, in our
considered opinion revealing examiner’s identity will only lead to
confusion and public unrest. Hence, we are not inclined to agree with
the decision of the Kerala High Court with respect to the second
question.

Shailesh Gandhi’s observation: The Supreme Court differed with the
finding of the Kerala High Court and the commission that there was no
fiduciary relationship between the examining body and the examiners.
In the CBSE judgment the apex court had given a finding that the
examining body was not in a fiduciary relation either with the examiners
or examinees. Yet in this case it faulted that finding of the High Court
on this issue. It brought in a new element, contending “Furthermore, the
information seeker has no role to play in this and we don t see any
logical reason as to how this will benefit him or the public at large. We
would like to point out that the disclosure of the identity of Examiners is
in the least interest of the general public and also any attempt to reveal
the examiner’ s identity will give rise to dire consequences. Therefore,
in our considered opinion revealing examiner’s identity will only lead to
confusion and public unrest.” It appears that the apex court made its
decisions guided by the thought that ‘the information seeker has no role
to play in this’ and ‘revealing the examiner’s identity will only lead to
confusion and public interest’. Specious grounds not justified by the
law. There is some indication that the court felt that the examiner’s
safety which could then have claimed exemption under Section 8 (1) (g).
There is no evidence in the judgment that this was urged before the
commission or the High Court. The particular section does not find any
mention even in the judgment. Also the probability of assaulting the
examiners by examinees after obtaining their names using RTI is
remote. It is also worth noting that the addresses of the examiners were
not sought.

I must also mention that the probable danger to the examiners is also too
far fetched and the overall wording indicates a strong conviction that
information must not be given.

Sandeep Jalan’s Observation: In view of the law settled by the Apex
Court in the case of CBSE versus Aditya Bandopadhyay, the
information as to copy of Answer sheets should have been provided
instantly, and the issue should not have travelled to Apex Court again.
This is how the PIOs and the Public Authorities play mischief by
misreading or by brazenly ignoring the law laid down by the Apex
Court.

In so far disclosure of names of Examiners is concerned, the said
information was denied by Apex Court on the premise of existence of
fiduciary relationship and personal safety of Examiners.

For the sake of clarity, let us revisit the two Apex Court rulings which
dealt with the issue of fiduciary relationships, and what the Apex Court
laid down as constituting the fiduciary relationship.

The issue of existence of fiduciary relationship came up before Apex
Court in the case of Central Board Of Secondary Education (CBSE)
Versus Aditya Bandopadhyay. In this case, the information sought was
the copy of Answer sheets by the student himself who appeared in the
examination conducted by CBSE. CBSE refused information on the
premise that it is holding information in a fiduciary capacity and stands
exempted u/s 8(1)(e) of the RTI Act.

For better understanding of the issue at hand, the three entities are first
be properly defined. The Examining Body is the CBSE which conducts
the Examination. The Examinee is the student who takes up the
examination. The Examiner is the person to whom the Examining Body
entrusts the work of evaluating the Answer sheets of the Examinee
student.

In the aforesaid case of CBSE, the Apex Court in Para 26 said in
essence said that Examining Body and the Examinee do not share any
fiduciary relationship between themselves; and assuming that they share
such relationship, the information cannot be denied to the examinee who
is in fact the beneficiary under such purported fiduciary relationship;
and in such supposition, the information can only be denied to third
party and not to the beneficiary.

In so far existence of fiduciary relationship between the Examining
Body and the Examiner is concerned, the Apex Court also discarded the
existence of any such fiduciary relationship between them; and further
said that such fiduciary relationship is temporary for the period when the
Examiner holds the custody of the Answer-sheets for the purpose of
evaluation; and the moment the evaluation is over and Answer-sheets
are returned to the Examining Body, such relationship ceased to exist.

In CBSE judgment, in so far as disclosure of names of Examiners is
concerned, the Apex Court said that their names cannot be disclosed to
the Examinee, on the premise that such disclosure may endanger the
personal safety of the Examiner. In Para 28, the Court said: 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 answerbooks 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 headexaminer who deal with the answer book.
Therefore, the disclosure of names of Examiners were refused u/s
8(1)(g) of the RTI Act. Section 8(1)(g). Exemption from disclosure of
information -- (1) Notwithstanding anything contained in this Act, there
shall be no obligation to give any citizen,- (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;

The issue whether there exist fiduciary relationship again came up in
RBI case (Judgment No.16 hereinabove), wherein in Para 62, the Apex
Court in the most unambiguous terms said that However, where
information is required by mandate of law to be provided to an
authority, it cannot be said that such information is being provided in a
fiduciary relationship.

The essence of these aforesaid two judgments is that – Examining Body
and the Examiner do not share fiduciary relationship between them; and
even if such fiduciary relationship exist, it is temporary for the period
when the Examiner holds the custody of the Answer-sheets for the
purpose of evaluation; and the moment the evaluation is over and
Answer-sheets are returned to the Examining Body, such relationship
ceased to exist; and where information is required by mandate of law to
be provided to an authority, it cannot be said that such information is
being provided in a fiduciary relationship.

In the present case, the stand of the Apex Court that there exists a
fiduciary relationship between PSC (Examining Body) and the
Examiners, is patently inconsistent with the law laid down by Apex
Court in CBSE and RBI case.

However in so far disclosure of names of Examiners is concerned, the
Apex Court refused the same, on the premise that “the information
seeker has no role to play in this and we don t see any logical reason as
to how this will benefit him or the public at large. We would like to
point out that the disclosure of the identity of Examiners is in the least
interest of the general public and also any attempt to reveal the examiner
s identity will give rise to dire consequences. Therefore, in our
considered opinion revealing examiner’s identity will only lead to
confusion and public unrest”.

The shortcoming in the immediate aforesaid observation is that said
grounds of refusal was not supported by mandate of law, whereas the
mandate of law is that if there is any exemption from disclosure of
information, it has to strictly fall within any of the clauses of section 8
of the RTI Act, and no other information should be withhold.
Nevertheless, it escaped the minds of the Apex Court that Section
8(1)(g) could have been invoked to deny said information (names of
Examiners). In the case of CBSE, the Apex Court although said that
there is no fiduciary relationship between the Examining Body and the
Examiners, the Court refused disclosure of names of Examiners u/s
8(1)(g), i.e. personal safety of Examiners. In the same breath, it may be
stated that the reasoning given by the Kerala High Court for the
disclosure of information, is rational, and quite sustainable in law.

I am sure Section 8(2) can aid in resolving this conflict. Section 8(2) of
the RTI Act provides that the concerned Public Authority may disclose
information inspite of applicability of any of the exemptions enumerated
in clauses of Section 8(1), if the concerned Public Authority, whilst
balancing the conflicting interests, holds that there is larger public
interest in disclosure of information.

 

About the Authors:
Shailesh Gandhi is a first generation entrepreneur and a Distinguished Alumnus awardee of IIT Bombay. He sold his company to become an RTI activist. Shailesh was part of the National RTI movement which was involved in drafting the National RTI Act. He was convener of the National Campaign for People’s Right To Information. He used RTI and also trained many citizens and government officials in over 1000 workshops to use it. He is perhaps the only RTI activist to have been chosen as a Central Information Commissioner. He disposed a record of over 20,000 cases in his tenure of 3 years and 9 months, and ensured that most cases were decided in less than 90 days. He gave many landmark decisions on RTI, apart from organizing the first digital paperless office in the Commission. He is now at his home in Mumbai to further and deepen RTI to empower citizens to take effective participatory charge of their democracy. He is also passionately pursuing the cause of evolving ways for a time bound justice delivery system, and improving governance systems. Amongst many awards, he has been awarded the Nani Palkhiwala Civil Liberties award, and the MR Pai award.

Sandeep Jalan is an Advocate, practicing in Bombay High Court and also in Subordinate Courts and Tribunals. He writes extensively on various legal issues. He has developed a website / Legal Referencer vakeelkanumber.com wherein the pressing issues of our society have been identified, with all probable legal remedies which may be pursued, are suggested therein, and followed by articulate legal drafts and procedure.

He also write Blogs.
http://commonlaw-sandeep.blogspot.in/
http://thepracticeoflawjalan.blogspot.in/
http://judgmentshighcourtsapexcourt.blogspot.in/
http://legaldraftsjalan.blogspot.in/

 

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



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