Right to Information and Good Governance

Dr. Sairam Bhat

Now, interestingly, the Subhash Chandra Agarwal case versus CPIO, Supreme Court is a
long case, which was in the relation to the declaration of Assets and Liabilities by judges
through the Chief Justice of the Supreme Court of India. This has been quite a long issue and
that was taken up at the Delhi High Court and later on, even by the Supreme Court as the case
may be.

Now in 2009, RTI Act to which Subhash Chandra Agarwal sought copies of a resolution that
was passed in 1997. This was a resolution of 1997 which required all judges of the Supreme
Court to declare their assets to the Chief Justice of India, and he wanted a copy of that
resolution and he also wanted to know whether you know, judges are actually declaring these
assets or not.

So, what he sought was details of the assets of the Chief Justice of various High Courts.
Unfortunately, this request was denied by the CPIO, and later on, Mr. S. C. Agarwal
approached the Central Information Commission and the CIC directed that there should be
such disclosure of such information regarding the personal assets of the judges.
Now, the order of the CIC was challenged with Delhi High Court and it was held that the
Chief Justice of India is a public authority under the Right to Information Act and the CJI
holds the information pertaining into asset declaration in his capacity as the Chief Justice
which is a public office. And hence, the information pertaining to such declaration which is at
the CJI must be information that should be provided under Right to Information Act.

However, the CJI, in this case, held that the said information is held in a fiduciary capacity,
and hence, under Section 8(1)(j) this can be treated as information that is in trust and
confidence and hence, the said information shall not be available under the Right to
Information Act.

So, in the S. C. Agarwal case, you realize the use Section 8(1)(e) and Section 8(1)(j), which is
in regarding to personal information which were used to deny the said information as the case
may be.

However, you know that right now the office of the CJI has been declared the public
authority, we have already discussed this matter. And after having discussed the said matter,
once it is a public authority, then the second question is whether the information held is in
fiduciary capacity or is personal information and whether, the said information should
provide or not.

However, when you apply the Girish Ramchandra Despande’s case, it is the Supreme Court
judgment 2013, you will notice that assets and liabilities statement of public servants are
personal information and hence, they shall not provide under Right to Information Act. And
judges are also public servants and hence, such said information cannot be accessed under the
Right to Information Act right now.

The second interesting case on fiduciary relationship is the CBSE versus Aditya
Bandhopadhyay case. A very celebrated case that has been used and used as a precedent,
quoted in other several cases after 2011, decided by the Supreme Court, and again, it
involved the Central Board Secondary Education.
And this was a case where the candidate got his marks but was very disappointed with his
marks. So, what he requested at the Central Board Secondary Education was, can he get to
see his answer-book. So, what he wanted to do was to inspect his answer-book and get a copy
of the same.

So, you know, naturally, you know being a candidate has taken part in an examination, you
are always bothered about the fact whether the marks have been properly calculated, whether
the totalling has been done or not, whether all the answers have been checked or not; so, this
is kind of anxiousness that every examinee has. So, they would definitely want to check
whether the answer-book copy has been properly evaluated and hence, he wanted a copy of
his answer-book. And hence, he made an application to the CBSE and the CBSE rejected the
same, way back in 2008.

Now, the reasons for the rejection somewhat like this. They said that is CBSE said that the
information sought was exempted under Section 8(1)(e) since CBSE shared fiduciary
relationship with the evaluators and it has a duty to maintain the confidentiality of the manner
and method of evaluation. This is what the CBSE defended.

Secondly, the CBSE also said that the examination by-laws of the Board provided that no
candidate shall claim or is entitled to re-evaluation of his answer-book. So, what is purpose of
inspection when there is no re-evaluation? Or he has also given a declaration that he will not
seek inspection of the answer-book copy. So once he is given this declaration, what is the
point of using RTI to seek the same? And lastly, the Central Board Secondary Education said
that there is no public interest that warrants the said disclosure of the information.

So, unless there is public interest, why should the said information be disclosed is what
CBSE said because in the most cases that you will notice, whenever there is information that
is of commercial confidence, information that is held in fiduciary capacity, information that is
personal; unless there is larger public interest, most of the information shall be exempted and
shall be denied.

The CIC however, gave a decision and the CIC looked into the rules and regulations of
answer-booklets within the CBSE and they did come to know that CBSE only maintains
these answer-books for a period of only 3 months.
So, in case you want a copy or you want to check, you want to do re-totalling or re-
evaluation, it is only within 3 months. So, after that, they destroy these records. So, their
record maintenance of booklet copy is only for 3 months. So, the time is the essence in this
case and within that time, the applicant had actually sought a copy of his answer-book.
(Refer Slide Time: 06:35)

Now, the High Court divisional bench heard and disposed the writ petition that was filed in
this case, CBSE versus Aditya Bandhopadhyay, and they relied on very interesting case
called the West Bengal Board of Secondary Education case.

And they held that evaluated answer-books of an examinee who writes a public examination,
which are conducted by statutory bodies like CBSE and others or say, by any university, and
so on and so forth, they are actually a document defined under the Right to Information Act.
They are a manuscript, they are a record under the Right to Information Act, and hence, you
will notice they fall within the ambit of under Section 2(f) of the Right to Information Act.

And hence, what they said is that when an examinee wants to access, inspect his evaluated
answer-book, especially in a public examination, or wants to take a certified copy thereof, I
think, he should get a right to the same. And this is necessary to ensure transparency and
accountability of the whole examination and the evaluation system, especially when it is
conducted by public examination institutions.

And most importantly, the Court held that when it comes to holding answer-booklets, the
evaluated answer-booklets, kindly note, the both is not a fiduciary relationship with the
examinee. So interestingly, the examination authority is not holding the answer-booklet after
evaluation in any fiduciary capacity. And hence, if they cannot hold or they are not holding
the same in fiduciary capacity, they cannot withhold the said information under Section 8
(1)(e) is what the divisional bench of the High Court had to say.
So, I think, in the Aditya Bandhopadhyay case, very importantly, the judges favoured
disclosure of inspection of answer-booklet copies especially, to individuals who were seeking
there for own answer-booklet copies and they said, this will secure accountability and
transparency in the working of the public authorities and it will give equal opportunity to
people. And I think, what it would help is in bringing about two different system vis-a-vis
public examination altogether.

I think that is where you will notice that after evaluation, I do not think that the answer-
booklets copies are held by the examination authority in a fiduciary capacity. So fiduciary
capacity cannot be extended beyond the traditional sense of those relationships in which it is
defined and interpreted to mean as fiduciary. A relationship of trust, a relationship of
confidence exists only between certain categories of individuals and it cannot be extended
beyond the same.