|Case||Central Board of Secondary Education (CBSE) v. Aditya Bandopadhyay & Ors, (2011) 8 SCC 497|
|Court||Before the Supreme Court of India|
|Bench||R.V. Raveendran, A.K. Patnaik|
|Author of the Judgement||R.V. Raveendran|
|Date of Judgement||9th August 2011|
|Abstract||In the present case, the main issue was whether a party is eligible to access his answer book for the purpose of revaluation and inspection under the Right To Information Act. The Honourable Supreme Court has held that the examinee has right to access those scripts provided that the request is made during a reasonable time in which the authorities are expected to retain the answer scripts.|
|Author of Brief||Brijesh K. Patel, Student at Gujarat National Law University.|
|Keywords||Right To Information Act, Revaluation, Inspection, Fiduciary Relationship.|
Acts/Rules and Definitions involved:
- Statement of Object/Reason and Preamble of Right to Information Act, 2005 (hereinafter referred as “RTI Act”) – ‘right of a citizen to secure the access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority’.
- Article 19 of Constitution of India – Freedom of Speech and Expression (Parent of RTI Act)
- 3, RTI Act – Subject to the provision of this act, all citizen shall have a right to information.
- 4, RTI Act – Maintain the record and publish and disseminate the information in a manner provided.
- 6, RTI Act – Request for providing information, no need to provide any reason for that.
- 8(e), RTI Act – ‘Exemption from disclosure of information’; clause (e) states ‘information available to a person in a fiduciary relationship unless the competent authority satisfied that the larger public interest warrants the disclosure of such information.’
- 2(f), RTI Act – “information” means any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
- 2(h), RTI Act – “public authority” means any authority or body or institution of self-government established or constituted—
- by or under the Constitution;
- by any other law made by Parliament;
- by any other law made by State Legislature;
- by notification issued or order made by the appropriate Government, and includes any—
- Body owned, controlled or substantially financed;
- Non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
- 2(i), RTI Act – (i) “record” includes—
- (a) any document, manuscript and file;
- (b) any microfilm, microfiche and facsimile copy of a document;
- (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
- (d) any other material produced by a computer or any other device;
- 2(j), RTI Act – (I) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-
- inspection of work, documents, records;
- taking notes, extracts or certified copies of documents or records;
- taking certified samples of material;
- obtaining information in term of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
- With regard to right to information and its constitutional validity: enshrined right under Art 19(1)(a)
- State of UP v. Raj Narain, (1975) 4 SCC 428.
- Dinesh Trivedi v. Union of India, (1997) 4 SCC 306.
- People’s Union for Civil Liberties v. The Union of India, (2004) 2 SCC 476.
- With regard to the validity of bye-laws of CBSE Examination which only provides for checking whether all answer has been evaluated or not and whether totalling is correct or not and no chance of hearing or inspection or revaluation has been provided by these bye-laws:
- Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Seth, (1984) 4 SCC 27.
- With regard to Issue 3: ‘Fiduciary Relationship’
- Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483. (Whether the task of conducting an examination and make its evaluation is a ‘Service’ provided to students or not? Held that it is not a ‘Service’. Cited here in the present case to know the relationship shared by Students and examining body with each other)
Aditya Bandopadhyay (Respondent; hereinafter referred as “R”) appeared in CBSE examination. In spite of performing good in examination, he got a low result and applied to CBSE for permitting his request of revaluation and inspection of his answer sheets. His request has been rejected by CBSE and aggrieved by that R filed a writ petition before Calcutta High Court which allowed his petition of inspection only and not of revaluation. Finally, the appeal has been filed before Supreme Court against the order of Calcutta High Court.
- Whether an examinee’s right to information under RTI act include the right to inspect his evaluated answer books in a public examination or taking certified copies thereof?
- Whether of the decision of SC in the case of Maharashtra State Board of Secondary and Higher Secondary Education and in other referred cases in any way affect or interfere with the right of an examinee seeking inspection of his answer books or taking certified copies thereof?
- Whether an examining body holds the evaluated answer books in a ‘fiduciary relationship’ and consequently has no obligation to give an inspection of the evaluated answer books under Section 8(1)(e) of RTI Act?
- If the examinee is entitled to inspection of the evaluated answer books or seek certified copies thereof, such right is subject to any limitation, condition and safeguard?
Contention of CBSE:
- Inspection of answer book is not permissible under bye-laws of CBSE examination. According to Rule 61 only verification of marks which includes checking whether all answer has been evaluated or not and whether there is any mistake in totalling is permissible. And this bye-law has an overriding effect upon the provision of RTI Act.
- Every year 12 to 13 lakh students across the country appeared for the examination and it will lead to chaos and huge inconvenience if inspection and/or revaluation is provided to these students. CBSE cited the judgement of SC in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Seth, (1984) 4 SCC 27.
- Entire examination and evaluation process has been conducted in a scientific and systematic way which leaves very little doubt with regard to gross negligence in the evaluation of answer book.
- CBSE holds the answer book of its students in a fiduciary relationship and thus it is exempted from disclosure under S. 8(1)(e) of RTI Act.
Contention of Respondent:
- The object of the RTI is to secure maximum disclosure of the information and minimum exemption from the disclosure of the information.
- CBSE doesn’t hold the evaluated answer book in a fiduciary relationship.
- Not exempt under 8(1)(e) of RTI Act.
- RTI Act has an overriding effect, According to S. 22 of RTI Act, notwithstanding inconsistent in any other law and with regard to any rules for the time being in force.
Judgement: written by R.V. Ravindran J. (in line with the number given above to issues raised)
- Answer book written by a candidate and submitted to examining the body for evaluation is a ‘document or record’ and the evaluated answer book by the examiner appointed by examining body is the ‘opinion’ of the examiner. Thus, the evaluated answer book is an ‘information’ under RTI Act. And this answer book also does not fall under any of the exemption provided under (a) to (j) of subsection 1 of Section 8 of RTI Act. Thus, every examinee has a right to inspect the evaluated answer book and if needed can take certified copies thereof under RTI Act.
- In the case of Bhupesh Kumar Seth, rules pari-materia has been made by Maharashtra State Board and its validity has been upheld by SC as well. SC in the present instant upheld the validity of CBSE Examination Rules which only provides for verification of marks. Thus, under CBSE bye-laws, a candidate don’t have a remedy of inspection of answer book but under the provision of RTI Act, aggrieved can claim right of inspection and taking its certified copies thereof. Only the right of inspection can be claimed under RTI Act and not the right of revaluation as it has not been provided under any of the remedies of S. 2(j) of RTI Act. RTI Act has an overriding effect over the rules of CBSE and thus a candidate can claim right of inspection under RTI Act but not under rules made by CBSE.
- In simple words, ‘Fiduciary relationship’ means relationship held for the benefit of each and held in confidentiality. Exemption from disclosure of an information under S. 8(1) (e) of RTI Act is with regard to no obligation to disclose it to any third party and not with regard to a beneficiary. Also, answer book written by a candidate is submitted to CBSE just to know them what he or she has written in an examination and evaluate them according to their performance. Thus, CBSE is not holding any information in a fiduciary relationship and accordingly, it has no exemption under S. 8(1)(e).
- Rights available under RTI Act is only with regard to information existing and information which required to be maintained. Where the time limit beyond which authorities are not required to maintain information, RTI Act will not be applicable.
Here the answer book contains a signature, barcode number or any other material which reveals the identity of the students is exempted under 8(1)(g) of RTI Act and this information must be severed under S. 10 of RTI Act and then the rest part only must be provided to the examinee.
The right to information doesn’t extend beyond the period examiner is expected to retain the answer book. Here the answer book is required to be maintained for the period of three months and the right to information can only claim during this period. Beyond that right also elapsed along with the time.
Judgement of the High Court has been upheld giving right of inspection and taking certified copies thereof to the examinee.
Effect of the Judgement:
Now students aggrieved by the evaluation of any examining bodies such as University, State Education Board, State Public Service Commission can claim his evaluated answer book for the purpose of inspection and can take certified copy of it under RTI Act but only during the time these authorities are expected to maintain and retain the answer book of all examinees under.