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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
ashakantasharma posted a blog entry in Asha Kanta SharmaCritical 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 Act! 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. SAtyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf