# CENTRAL BOARD OF SECONDARY EDUCATION & ANR v. ADITYA BANDOPADHYAY & ORS

- **Citation:** [2011] 11 S.C.R. 1028
- **Court:** Supreme Court of India
- **Decided:** 2011-08-09
- **Case number:** Civil Appeal No. 6454 of 2011
- **Bench:** R.V. Raveendran, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/central-board-of-secondary-education-anr-v-aditya-bandopadhyay-ors-27101
- **Pages:** 66

## Headnote

Right to Information Act, 2005:
ss. 8 (1)(e), 2 (f), 2(i), 2(j), 3, 24 and 9 - Public
examination - Examinee's right to inspect his evaluated
answer books in a public examination or taking certified
copies - Scope of - Held: Every examinee has the right to
D access his evaluated answer-books, by either inspecting them
or take certified copies thereof, . unless the evaluated answerbooks are found to be exempted u/s. 8(1)(e) - Answer-book
is a document or record in terms of s. 2(i) and as such the
evaluated answer-book is also an 'information' under the Act
- Under s. 3, the citizens have the right to access to all
E information held by or under the control of any public authority
except those excluded or exempted under the Act -
Examining bodies (Universities, Examination Boards, CBSE
etc.) are neither security nor intelligence organisations -
Disclosure of information with reference to answer-books also
F does not involve infringement of any copyright - Thus, the
exemption u/ss. 24 and 9 would not apply to them.
s. 22 - Overriding effect of - Right of an examinee
seeking inspection of his answer books or seeking certified
G copies thereof -
Effect of decision of this Court in
*Maharashtra State Board of Secondary Education v,
Paritosh B. Sheth on such right - Held: Decision of this Court
in *Maharashtra State Board and the subsequent decisions
following the same, would not affect or interfere with the right
H
1028
CENTRAL BOARD OF SECONDARY EDUCATION v. 1029
ADITYA BANDOPADHYAY
of the examinee seeking inspection of answer-books or taking
A
certified copies thereof - RT/ Act enables/entitles the student
to have access to the answer-books as 'information' and
inspect them and take certified copies thereof - s. 22 provides
that the provisions of the Act would have effect,
notwithstanding anything inconsistent therewith contained in
B
any other law for the time being in force - Thus, the provisions
of the RT/ Act would prevail over the provisions of the byelawslru/es 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 c
category of information described in clause (e) of s. 8(1), the
examining body would be bound to provide access to an
examinee to inspect and take copies of his evaluated answerbooks, even if such inspection or taking copies is barred
under the rules/bye-laws of the examining body governing the
D
examinations.
s. 8(1)(e)- Whether examining body holds the evaluated
answer books "in a fiduciary relationship" and thus, has no
obligation to give inspection of the evaluated answer books
u/s. 8 (1)(e) - Held: Examining body does not hold the
E
evaluated answer books in a fiduciary relationship, qua the
examiner - Not being information available to an examining
body in its fiduciary relationship, the exemption uls. 8(1)(e)
is not available to the examining bodies with reference to
evaluated answer-books and the examining bodies will have
F
to permit inspection sought by the examinees.
Right of inspection of the evaluated answer books or
seeking certified copies thereof by examinee - Limitations,
conditions or safeguards to such right - Held: Portions of G
answer-books containing information regarding the
examiners/co-ordinators/scrutinisers/head examiners or which
may disclose their identify with reference to signature or
initials, should be removed, c_overed, or otherwise severed
H
1030
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A from the non-exempted part of the answer-books, u/s. 10 -
Right to access information does not extend beyond the
period during which the examining body is expected to retain
the answer-books - s. 8(3) nowhere provides that records or
information have to be maintained for a period of twenty years
B or more nor override any rules or regulations governing the
period for which the record, document or information is
required to be preserved by any public authority.
s. 8 - Interpretation of - Held

## Text

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A
B
c
[2011] 11 S.C.R. 1028
CENTRAL BOARD OF SECONDARY EDUCATION &
ANR.
v.
ADITYA BANDOPADHYAY & ORS.
(Civil Appeal No. 6454 of 2011)
AUGUST 09, 2011
[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]
Right to Information Act, 2005:
ss. 8 (1)(e), 2 (f), 2(i), 2(j), 3, 24 and 9 - Public
examination - Examinee's right to inspect his evaluated
answer books in a public examination or taking certified
copies - Scope of - Held: Every examinee has the right to
D access his evaluated answer-books, by either inspecting them
or take certified copies thereof, . unless the evaluated answerbooks are found to be exempted u/s. 8(1)(e) - Answer-book
is a document or record in terms of s. 2(i) and as such the
evaluated answer-book is also an 'information' under the Act
- Under s. 3, the citizens have the right to access to all
E information held by or under the control of any public authority
except those excluded or exempted under the Act -
Examining bodies (Universities, Examination Boards, CBSE
etc.) are neither security nor intelligence organisations -
Disclosure of information with reference to answer-books also
F does not involve infringement of any copyright - Thus, the
exemption u/ss. 24 and 9 would not apply to them.
s. 22 - Overriding effect of - Right of an examinee
seeking inspection of his answer books or seeking certified
G copies thereof -
Effect of decision of this Court in
*Maharashtra State Board of Secondary Education v,
Paritosh B. Sheth on such right - Held: Decision of this Court
in *Maharashtra State Board and the subsequent decisions
following the same, would not affect or interfere with the right
H
1028
CENTRAL BOARD OF SECONDARY EDUCATION v. 1029
ADITYA BANDOPADHYAY
of the examinee seeking inspection of answer-books or taking
A
certified copies thereof - RT/ Act enables/entitles the student
to have access to the answer-books as 'information' and
inspect them and take certified copies thereof - s. 22 provides
that the provisions of the Act would have effect,
notwithstanding anything inconsistent therewith contained in
B
any other law for the time being in force - Thus, the provisions
of the RT/ Act would prevail over the provisions of the byelawslru/es 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 c
category of information described in clause (e) of s. 8(1), the
examining body would be bound to provide access to an
examinee to inspect and take copies of his evaluated answerbooks, even if such inspection or taking copies is barred
under the rules/bye-laws of the examining body governing the
D
examinations.
s. 8(1)(e)- Whether examining body holds the evaluated
answer books "in a fiduciary relationship" and thus, has no
obligation to give inspection of the evaluated answer books
u/s. 8 (1)(e) - Held: Examining body does not hold the
E
evaluated answer books in a fiduciary relationship, qua the
examiner - Not being information available to an examining
body in its fiduciary relationship, the exemption uls. 8(1)(e)
is not available to the examining bodies with reference to
evaluated answer-books and the examining bodies will have
F
to permit inspection sought by the examinees.
Right of inspection of the evaluated answer books or
seeking certified copies thereof by examinee - Limitations,
conditions or safeguards to such right - Held: Portions of G
answer-books containing information regarding the
examiners/co-ordinators/scrutinisers/head examiners or which
may disclose their identify with reference to signature or
initials, should be removed, c_overed, or otherwise severed
H
1030
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A from the non-exempted part of the answer-books, u/s. 10 -
Right to access information does not extend beyond the
period during which the examining body is expected to retain
the answer-books - s. 8(3) nowhere provides that records or
information have to be maintained for a period of twenty years
B or more nor override any rules or regulations governing the
period for which the record, document or information is
required to be preserved by any public authority.
s. 8 - Interpretation of - Held: Is not to be construed
strictly, literally and narrowly - When s. 8 exempts certain
C information from being disclosed, it should not be considered
to be a fetter on the right to information, but as an equally
important provision protecting other public interests essential
for the fulfilment and preservation of democratic ideals.
D
Enforcement of RT/ Act -
~eld: Should be enforced
strictly - Necessary information under clause (b) of s. 4(1)
relating to. securing transparency and accountability in the
working of public authorities and in discouraging corruption
to be brought to light - Act should not be allowed to be
E 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.
F
G
H
Object and reasons of the RT/ Act - Explained.
Words and Phrases:
Term 'fiduciary' and 'fiduciary relationship' - Meaning of
Respondent No. 1 appeared for the Secondary
School Examination, 2008 conducted by appellantCentral Board of Secondary Education (CBSE). He was
disappointed with his marks and thus, he made an
application for inspection and re-evaluation of his
CENTRAL BOARD OF SECONDARY EDUCATION v.1031
ADITYA BANDOPADHYAY
answer-books. CBSE rejected the same. Respondent No.
A
1 filed a writ petition seeking a declaration that the action
of CBSE in excluding the provision of re-evaluation of
answer-sheets, in regard to the examinations held by it
was illegal, unreasonable and violative of the provisions
of the Constitution of India; for a direction to CBSE to
B
appoint an independent examiner for re-evaluating his.
answer-books and issue a fresh marks card on the basis
of re-evaluation; for a direction to CBSE to produce his
answer-books in regard to the 2008 Secondary School
Examination and that too into court for inspection by the c
first respondent; and for quashing the communication of
CBSE. The Division Bench of the High Court disposed
of the said writ petition along with the connected writ
petitions directing CBSE to grant inspection of the
answer books to the examinees who sought information,
0
but rejected the prayer made by the examinees for reevaluation of the answer-books, as that was not a relief
that was available under Right to Information Act, 2005.
Therefore, the appellant-CBSE filed the instant appeal.
The questions which arose for consideration in these
E
appeals are whether an examinee's right to information
under the Right to Information Act, 2005 includes a right
to inspect his evaluated answer books in a public
examination or taking certified copies thereof; whether
the decisions of this Court in *Maharashtra State Board
F
of Secondary Education v, Paritosh B. Sheth and other
cases, in any way affect or interfere with the right of an
examinee seeking inspection of his answer books or
seeking certified copies thereof; whether an examining
body holds the evaluated answer books "in a fiduciary
G
relationship" and consequently has no obligation to give
inspection of the evaluated answer books under section
8 (1)(e) of RTI Act; and if the eJaminee is entitled to
inspection of the evaluated answer books or seek
certified copies thereof, whether such right is subject to
H
1032
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A any limitations, conditions or safeguards.
Disposing of the appeals, the Court
HELD: 1. The order of the High Court directing the
examining bodies to permit examinees to have inspection
B of their answer books is upheld, subject to the
clarifications regarding the scope of the Right to
Information Act, 2005 and the safeguards and conditions
subject to which 'information' should be furnished. [Para
38] (1093-F]
c
2.1. The definition of 'information' in Section 2(f) of
the RTI Act refers to any material -in any form which
includes records, documents, opinions, papers among
several other enumerated items. The term 'record' is
0 defined in Section 2(i) of the said Act as including any
document, manuscript or file among others. When a
candidate participates in an examination and writes his
answers in an answer-book and submits it to the
examining body for evaluation and declaration of the
E result, the answer-book is a document or record. When
the answer-book1s eval uated by an examiner appointed
by the examining body, the evaluated answer-book
becomes a record containing the 'opinion' of the
examiner. Therefore, the evaluated answer-book is also
an 'information' under the RTI Act. (Para 11] (1066-C-E]
F
2.2. Section 3 of RTI Act provides that subject to the
provisions of this Act all citizens shall have the right to
information. The term 'right to information' is defined in
Section 2(j) as the right to information accessible under
G the Act which is held by or under the control of any public
authority. Having regard to Section 3, the citizens have
the right to access to all information held by or under the
control of any public authority ·except those excluded or
exempted under the Act. The object of the Act is to
H . empower the citizens to fight against corruption and hold
CENTRAL BOARD OF SECONDARY EDUCATION v. 1033
ADITYA BANDOPADHYAY
the Government and their instrumentalities accountable
A
to the citizens, by providing them access to information
regarding functioning of every public authority. Certain
safeguards have been built into the Act so that the
revelation of information will not conflict with other public
interests which include efficient operation of the
B
governments, optimum use of limited fiscal resources
and preservation of confidential and sensitive
information. The RTI Act provides access to information
I held by or under the control of public authorities and not
· in regard to information held by any private person. The c
Act provides the exclusions by way of exemptions and
exceptions (under Sections 8, 9 and 24) in regard to
information held by public authorities. Having regard to
the scheme of the RTI Act, the right of the citizens to
access any information held or under the control of any
D
public authority, should be read in harmony with the
exclusions/exemptions in the Act. [Para 12) [1066-F-H;
1067-A-B-H; 1068-A]
2.3. The examining bodies (Universities, Examination
Boards, CBSC etc.) are neither security nor intelligence
E
organisations and therefore, the exemption under
Section 24 would not apply to them. The disclosur.e of
information with reference to answer-books does not
also involve infringement of any copyright and therefore,
Section 9 would not apply. Resultantly, unless the
F
examining bodies are able to demonstrate that the
evaluated answer-books fall under any of the categories
of exempted 'information' enumerated in clauses (a) to (j)
of sub-section. (1) Section 8, they would be bound to
provide access to the information and any applicant can
G
either inspect the document/record, take notes, extracts
or obtain certified copies thereof. Every examinee would
have the right to access his evaluated answer-books, by
either inspecting them or take certified copies thereof,
unless the evaluated answer-books are found to be
H
1034
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A exempted under Section 8(1)(e) of the RTI Act. [Paras 13
and 14) (1068-C-FJ
3.1. The principles laid down in decisions such as
*Maharashtra State Board that denial of re-evaluation of
8 answer-books or denial of disclosure by way of
inspection of answer books, to an examinee, under Rule
104(1) and (3) of the Maharashtra Secondary and Higher
Secondary Board Rules, 1977 was not violative of
principles of natural justice and Articles 14 and 19 of the
C Constitution of India, depend upon the provisions of the
rules and regulations of the examining body. If the rules
and regulations of the examining body provide for reevaluation, inspection or disclosure of the answer-books,
then none of the principles in Maharashtra State Board
or other decisions following it, would apply or be relevant.
D There has been a gradual change in trend with several
examining bodies permitting inspection and disclosure
of the answer-books. [Para 16] [1072-D-E]
3.2. A provision barring inspection or disclosure of
E the answer-books or re-evaluation of the answer-books
and restricting the remedy of the candidates only to retotalling is valid and binding on the examinee. In the case
of CBSE, the provisions barring re-evaluation and
inspection contained in Bye-law No.61, are akin to Rule
F 104 considered in Maharashtra State Board. As a
consequence if an examination is governed only by the
rules and regulations of the examining body which bar
inspection, disclosure or re-evaluation, the examinee will
be entitled only for re-totalling by checking whether all the
,... answers have been evaluated and further checking
\,;J whether there is no mistake in totaling of marks for each
question and marks have been transferred correctly to the
title (abstract) page. The position may however be
different, if there is a superior statutory right entitling the
CENTRAL BOARD OF SECONDARY EDUCATION v. 1035
ADITYA BANDOPADHYAY
examinee, as a citizen to seek access to the answer A
books, as information. [Para 17] [1072-F-H; 1073-A-B]
3.3. In the cases referred, the High Court rightly
denied the prayer for re-evaluation of answer-books
sought by the candidates in view of the bar contained in
the rules and regulations of the examining bodies. It is
also not a relief available under the RTI Act. Therefore, the
question whether re-evaluation should be permitted or
not, did not arise for consideration. What arose for
consideration is the question whether the examinee is
C
entitled to inspect his evaluated answer-books or take
certified copies thereof. This right is claimed by the
students, not with reference to the rules or bye-laws of
examining bodies, but under the RTI Act which enables
them and entitles them to have access to the answerbooks as 'information' and inspect them and take certified D
copies thereof. 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 being in force.
Therefore, the provisions of the RTI Act will prevail over
E
the provisions of the bye-laws/rules of the examining
bodies in regard to examinations. As a result, unless the
examining ·body is abl~ to demonstrate that the answerbooks 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
B
F
is barred under the rules/bye-laws of the examining body
governi.ng the examinations. Therefore, the decision of G
this Court in Maharashtra State Board and the
subsequent decisions following the same, will not affect
or interfere with the right of the examinee seeking
inspection of answer-books or taking certified copies
thereof. [Para 18] [1073-8-H]
.H
1036
SUPREME COURT REPORTS
[2011) 11 S.C.R.
A
*Maharashtra State Board of Secondary Education vs.
Paritosh B. Sheth 1984 (4) SCC 27; Parmod Kumar
Srivastava vs. Chairman, Bihar PAC 2004 (6) SCC 714: 2004
(3 ) Suppl. SCR 372; Board of Secondary Education vs.
Pavan Ranjan P 2004 (13) SCC 383; Board of Secondary
B Education vs. S 2007 (1) SCC 603; Secretary, West Bengal
Council of Higher Secondary Education vs. I Dass 2007 (8)
SCC 242: 2007 (10 ) SCR 464 - referred to.
4.1. Section 8(1) enumerates the categories of
information which are exempted from disclosure under
C the provisions of the RTI Act. This exemption is subject
to the condition that if the competent authority (as defined
in Section 2(e) of RTI Act) is satisfied that the larger public
interest warrants the disclosure of such information, the
information will have to be disclosed. [Para 19] [1074-8D C]
4.2. The term 'fiduciary' and 'fiduciary relationship'
refer to different capacities and relationship, involving a
common duty or obligation. The term 'fiduciary' refers to
E a person having a duty to act for the benefit of another,
showing good faith and condour, where such other
person reposes trust and special confidence in the
person owing or discharging the duty. The term 'fiduciary
relationship' is used to describe a situation or transaction
where one person (beneficiary) places complete
F confidence in another person (fiduciary) in regar~ to his
affairs, business or transaction/s. The term also refers to
a person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in
confidence and for the benefit and advantage of the
G beneficiary, and use good faith and fairness in dealing
with the beneficiary or the things belonging to the
beneficiary. If the beneficiary has entrusted anything to
the fiduciary, to hold the thing in trust or to execute
certain acts in regard to or with reference to the entrusted
H . thing, the fiduciary has to act in confidence and expected
CENTRAL BOARD OF SECONDARY EDUCATION v. 1037
ADITYA BANDOPADHYAY
not to disclose the thing or information to any third party.
A
There are also certain relationships where both the
parties have to act in a fiduciary capacity treating the
other as the beneficiary. [Paras 20 and 21) [1074-D; 10778-E]
Bristol and West Building Society vs. Mothew 1998 Ch.
1; Wolf vs. Superior Court 2003 (107) California Appeals, 4th
25 - referred to.
B
Black's Law Dictionary 7th Edition, p 640; American
Restatements (Trusts and Agency); Corpus Juris Secundum
C
Vol. 36A 381; Words and Phrases, Permanent Edition Vol.
16A, 41 - referred to.
4.3. In a philosophical and very wide sense,
examining bodies can be said to act in a fiduciary
D
capacity, with reference to students who participate in an
examination, as a government does while governing its
citizens or as the present generation does with .reference
to the future generation while preserving the
environment. But the words 'information available to a
person in his fiduciary relationship' are used in Section
8(1)(e) of RTI Act in its normal and well recognized sense,
that is to refer to persons who act in a fiduciary capacity,
with reference to a specific beneficiary or beneficiaries
who are to be expected to be protected or benefited by
the actions of the fiduciary. That kind of fiduciary
relationship is not found between the examining body
and the examinee, with reference to the evaluated
answer-books, that come into the custody of the
examining body. [Para 22) [1077-H; 1078-A-E]
4.4. The duty of examining bodies is to subject the
E
F
G
candidates who have completed a course of study or a
period of training in accordance with its curricula, to a
process of verification/examination/testing of their
knowledge, ability or skill, or to ascertain whether they
H
can be said to have successfully completed or passed
1038
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A the course of study or training. Other specialized
Examining Bodies may simply subject candidates to a
process of verification by an examination, to find out
whether such person is suitable for a particular post, job
or assignment. An examining body, if it is a public
s authority entrusted with public functions, is required to
act fairly, reasonably, uniformly and consistently for
public good and in public interest. It cannot be said that
the examining body is in a fiduciary relationship either
with reference to the examinee who participates in the
c examination and whose answer-books are evaluated by
the examining body. [Para 23] [1078-F-H; 1079-A-B; 1080A-B]
D
Bihar School Examination Board vs. Suresh Prasad
Sinha (2009) 8 SCC 483 - referred to.
4.5. Section 8 (1)(e) provides that notwithstanding
anything contained in the Act, there shall be no obligation
to give any citizen information available to a person in his
fiduciary relationship. This would -only mean that even if
E the relationship is fiduciary, the exemption would operate
in regard to giving access to the information held in
fiduciary relationship, to third parties. There is no
question of the fiduciary withholding information relating
to the beneficiary, from the beneficiary himself. One of the
F duties of the fiduciary is to make thorough disclosure of
all relevant tacts of all transactions between them to the
beneficiary, in a fiduciary relationship. By that logic, the
examining body, if it is in a fiduciary relationship with an
examinee, would be liable to make a full disclosure of the
evaluated answer-books to the examinee and at the same
G time, owe a duty to the examinee not to disclose the
answer-books to anyone else. If a relationship of fiduciary
and beneficiary is assumed between the examining body
and the examinee with reference to the answer-book,
Section 8(1)(e) would operate as an exemption to prevent
H access to any third party and would not operate as a bar
CENTRAL BOARD OF SECONDARY EDUCATION v. 1039
ADITYA BANDOPADHYAY
for the very person who wrote the answer-book, seeking
A
inspection or disclosure of it. [Para 24] (1080-B-G]
4.6. An evaluated answer book of an examinee is a
combination of two different 'informations'. The first is the
answers written by the examinee and second is the
8
marks/assessment by the examiner. When an examinee
seeks inspection of his evaluated answer-books or seeks
a certified copy of the evaluated answer-book, the
information sought by him is not really the answers he
has written in the answer-books (which he already C
knows), nor the total marks assigned for the answers
(which has been declared). What he really seeks is the
information relating to the break-up of marks, that is, the
specific marks. assigned to each of his answers. When
an examinee seeks 'information' by inspection/certified
copies of his answer-books, he knows the contents
D
thereof being the author thereof. When an examinee is
permitted to examine an answer-book or obtain a certified
copy, the examining body is not really giving him some
information which is held by it in trust or confidence, but
is only giving him an opportunity to read what he had
E
written at the time of examination or to have a copy of his
answers. Therefore, in furnishing the copy of an answerbook, there is no question of breach of confidentiality,
privacy, secrecy or trust. The real issue therefore, is not
in regard to the answer-book but in regard to the marks
F
awarded on evaluation of the answer-book. Even here the
total marks given to the examinee in regard to his answerbook are already declared and known to the examinee.
What the exaininee actually wants to know is the breakup of marks given to him, that is how many marks were
G
given by the examiner to each of his answers so that he
can assess how his performance has been evaluated and
whether the evaluation is proper as per his hopes and
expectations. Therefore, the test for finding out whether
the information is exempted or not, is not in regard to the
H
1040
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A answer book but in regard to the evaluation by the
examiner. [Para 25] [1080-H; 1081-A-F]
4.7. The examining body engages or employs
hundreds of examiners to do the evaluation of thousands
8 of answer books. The question is whether the
information relating to the 'evaluation' (that is assigning
of marks) is held by the examining body in a fiduciary
relationship. The submission that even if fiduciary
relationship does not exist with reference to the
examinee, it exists with reference to the examiner who
C evaluates the answer-books, has no merit. The examining
body entrusts the answer-books to an examiner for
evaluation and pays the examiner for his expert service.
The work of evaluation and marking the answer-book is
an assignment given by the examining body to the
D examiner which he discharges for a consideration.
Sometimes, an examiner may assess answer-books, in
the course of his employment, as a part of his duties
without any specific or special remuneration. In other
words the examining body is the 'principal' and the
E examiner is the agent entrusted with the work, that is,
evaluation of answer-books. Therefore, the examining
body is not in the position of a fiduciary with reference
to the examiner. On the other hand, when an answerbook is entrusted to the examiner for the purpose of
F evaluation, for the period the answer-book is in his
custody and to the extent of the discharge of his
functions relating to evaluation, the examiner is in the
position of a fiduciary with reference to the examining
body and he is barred from disclosing the contents of the
G answer-book or the result of evaluation of the answerbook to anyone other than the examining body. Once the
examiner has evaluated the answer books, he ceases to
have any interest in the evaluation done by him. He does
not h.ave any copy-right or proprietary right, or
H
CENTRAL BOARD OF SECONDARY EDUCATION v.1041
ADITYA BANDOPADHYAY
confidentiality right in regard to the evaluation. Therefore,
A
the examining body does not hold the evaluated answer
books in a fiduciary relationship, qua the examiner.
Therefore, an examining body does not hold the
evaluated answer-books in a fiduciary relationship. Not
being information available to an examining body in its
B
fiduciary relationship, the exemption under Section 8(1 )(e)
is ·not available to the examining bodies with reference
to evaluated answer-books. As no other exemption under
Section 8 is available in respect of evaluated answer
books, the examining bodies will have to permit c
inspection sought by the examinees. [Para 26) [1081-GH; 1082-A-F]
.
5.1. 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
D
information regarding evaluation ta anyone other than
the examining body. Similarly the examiner also expects
that his name and particulars would not be disclosed to
the candidates whose answer-books are evaluated by
him. In the event of such information being made known,
E
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,
F
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 head-examiner who deal
with the answer book. The answer book usually contains
G
not only the signature and code number of the examiner,
but also the signatures and code number of the
scrutiniser/co-ordinator/head examiner. The information
as to the names or particulars of the examiners/coordinators/scrutinisers/head examiners are therefore,
H
exempted from disclosure under Section 8(1 )(g) of RTI
1042
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A Act, on the ground that if such information is disclosed,
it may endanger their physical safety. Therefore, if the
examinees are to be given access to evaluated answerbooks either by permitting inspection or by granting
certified copies, such access would have to be given
B only to that part of the answer-book which does not
contain any information or signature of the examiners/coordinators/scrutinisers/head examiners, exempted from
disclosure under Section 8(1)(g) of RTI Act. Those
portions of the answer-books which contain information
c regarding the examiners/co-ordinators/scrutinisers/head
examiners or which may disclose their identity with
reference to signature or initials, shall have to be
removed, covered, or otherwise severed from the nonexempted part of the answer-books, under Section 10 of
D RTI Act. [Para 28) [1083-B-H; 1084-A]
5.2. The right to access information does not extend
beyond the period during which the examining body is
expected to retain the answer-books. In the case of CBSE,
the answer-books are required to be maintained for a
E period of three months and thereafter, they are liable to
be disposed of/destroyed. Some other examining bodies
are required to keep the answer-books for a period of six
months. The fact that right to information is available in
regard to answer-books does not mean that answerF books would have to be maintained for any longer period
than required under the rules and regulations of the
public authority. The obligation under the RTI Act is to
make available or give access to existing information or
information which is expected to be preserved or
G maintained. If the rules and regulations governing the
functioning of the respective public authority require
preservation of the information for only a limited period,
the applicant for information would be entitled to such
information only if he seeks the information when it is
H available with the public authority. The power of the
CENTRAL BOARD OF SECONDARY EDUCATION v. 1043
ADITYA BANDOPADHYAY
Information Commission under Section 19(8) of the RTI
A
Act to require a public authority to take any such steps
as may be necessary to secure compliance with the
provision of the Act, does not include a power to direct the
public authority to preserve the information, for any
period larger than what is provided under the rules and
B
regulations of the public authority. [Para 29] [1084•8-G]
5.4. Section 8(3) nowhere provides that records or
information have to be maintained for a period of twenty
years. The period for which any particular records or
information has to be maintained would depend upon the
C
relevant statutory rule or regulation of the public authority
relating to the preservaUori of records. Section 8(3)
proyides that information relating to any occurrence,
event or matters which has taken place and occurred or
happened twenty years before the date on which any D
request is made under Section 6, shall be provided to any
person making a request. This means that where any
information required to be maintained and preserved for
a period beyond twenty years under the rules of the
public authority, is exempted from disclosure under any
E
of the provisions of Section 8(1) of RTI Act, then,
notwithstanding such exemption, access to such
information shall have to be provided by disclosure
thereof, after a period of twenty years except where they
relate to information falling under clauses (a), (c) and (i)
F
of Section 8(1 ). In other words, Section 8(3) provides that
any protection against disclosure that may be available,
under clauses (b), (d) to (h) and (j) of section 8(1) would
cease to be available after twenty years in regard to
records which are required to be preserved for more than
G
twenty years. Where any record or information is required
to be destroyed under the rules and regulations of a
public authority prior to twenty Y,ears, Section 8(3) would
not prevent destruction in accordance with the Rules.
H
1044
SUPREME COURT REPORTS
(2011] 11 S.C.R.
A Section 8(3) of RTI Act is not therefore, a provision
requiring all 'information' to be preserved and maintained
for twenty years or more, nor does it override any rules
or regulations governing the period for which the record,
document or information is required to be preserved by
B any public authority. [Para 30) [1085-A-G]
5.5. The Act seeks to bring about a balance between
two conflicting interests, as harmony between them is
essential for preserving democracy. One is to bring about
transparency and accountability by providing access to
C information under the control of public authorities. The
other is to ensure that the revelation of information, in
actual practice, does not conflict with other public
interests which include efficient operation of the
governments, optimum use of limited fiscal resources
D and preservation of confidentiality of sensitive
information. The preamble to the Act specifically states
that the object of the Act is to harmonise these two
conflicting interests. While Sections 3 and 4 seek to
achieve the first objective, Sections 8, 9, 10 and 11 seek
E to achieve the second objective. Therefore, when Section
8 exempts certain information from being disclosed, it
should not be considered to be a fetter on the right to
information, but as an equally important provision
protecting other public interests essential for the
F fulfilment and preservation of democratic ideals. [Para 33)
[1089-F-H; 1090-A-C]
5.6. When trying to ensure that the right to
information does not conflict with several other public
interests (which includes efficient operations of the
G governments, preservation of confidentiality of sensitive
information, optimum use of limited fiscal resources, etc.),
it is difficult to visualise and enumerate all types of
information which require to be exempted from
disclosure in public interest. The legislature has however
H made an attempt to do so. The enumeration of
CENTRAL BOARD OF SECONDARY EDUCATION v.1045
ADITYA BANDOPADHYAY
exemptions is more exhaustive than the enumeration of A
exemptions attempted in the earlier Act that is Section 8
of the Freedom to Information Act, 2002. The Courts and
Information Commissions enforcing the provisions of RTI
Act have to adopt a purposive construction, involving a
reasonable and balanced approach which harmonises
B
the two objects of the Act, while interpreting Section 8
and the other provisions of the Act. [Para 34) [1090-D·F]
5.7. The RTI Act provides access to all information
that is available and existing. This is clear from a
C
combined reading of Section 3 and the definitions of
'information' and 'right to information' under clauses (f)
and (j) of Section 2 of the Act. If a public authority has any
information in the form of data or analysed data, or
abstracts, or statistics, an applicant may access such
information, subject to the exemptions in Section 8 of the
D
Act. But where the information sought is not a part of the
record of a public authority, and where such information
is not required to be maintained under any law or the
rules or regulations of the public authority, the Act does
not cast an obligation upon the public authority, to collect
E
or collate such non-available information and then
furnish it to an applicant. A public authority is also not
required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not
required to provide 'advice' or 'opinion' to an applicant,
F
nor required to obtain and furnish any 'opinion' or
'advice' to an applicant. The reference to 'opinion' or
'advice' in the definition of 'information' in Section 2(f) of
the Act, only refers to such material available in the
records of the public authority. Many public authorities
G
have, as a public relation exercise, provide advice,
guidance and opinion to the citizens. But that is purely
·voluntary and should not be confused with any
obligation under the RTI Act. [Para 35) [1090-G-H; 1091A-C]
H
1046
SU-PREME COURT REPORTS
[2011) 11 S.C.R.
A
5.8. Section 19(8) of RTI Act has entrusted the
Central/State Information Commissions, with the power
to require any public authority to take any such steps as
may be necessary to secure the compliance with the
provisions of the Act. Apart from the generality of the said
B power, clause (a) of section 19(8) refers to six specific
powers, to implement the provision of the Act. The power
under Section 19(8) of the Act however does not extend
to requiring a public authority to take any steps which are
not required or contemplated to secure compliance with
c the provisions of the Act or to issue directions beyond
the provisions of the Act. The power under Section 19(8)
of the Act is intended to be used by the Commissions to
ensure compliance with the Act, in particular ensure that
every public authority maintains its records duly
0 catalogued and indexed in the manner and in the form
which facilitates the right to information and ensure that
the records are computerized, as required under clause
(a) of Section 4(1) of the Act; and to ensure that the
information enumerated in clauset. (b) and (c} of Sections
4(1) of the Act are published and disseminated, and are
E periodically updated as provided in sub-Sections (3) and
(4) of Section 4 of the Act. If the 'information' enumerated
in clause (b) of Section 4(1) of the Act are effectively
disseminated (by publications in print and on websites
and other effective means}, apart from providing
F transparency and accountability, citizens will be able to
access relevant information and avoid unnecessary
applications for information under the Act. [Para 36] [1091F-H; 1092-A-F]
G
5.9. The right to information is a cherished right.
Information and right to information are intended to be
formidable tools in the hands of responsible citizens to
fight corruption and to bring in transparency and
accountability. The provisions of RTI Act should be
enforced strictly and all efforts should be made to bring
H to light the necessary information under clause (b) of
CENTRAL BOARD OF SECONDARY EDUCATION v. 1047
ADITYA BANDOPADHYAY
Section 4(1) which relates to securing transparency and
A
accountability in the working of public authorities and in
discouraging corruption. But in regard to other
information,(that is information other than those
enumerated in Section 4(1)(b) and (c)), equal importance
and emphasis are given to other public interests (like
B
confidentiality of sensitive information, fidelity and
fiduciary
relationships,
efficient
operation
of
governments, etc.). Indiscriminate and impractical
demands or directions under RTI Act for disclosure of all
and sundry information (unrelated to transparency and c
accountability in the functioning of public authorities and
eradication of corruption) would be counter-productive
as it would adversely affect the efficiency of the
administration and result in the executive getting bogged
down with the non-productive work of collecting and
D
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.
E
The threat of penalties under the RTI Act and the pressure
of the authorities under the RTI Act should not lead to
employees of a public authorities prioritising 'information
furnishing', at the cost of their normal and regular duties.
[Para 37) [1092-G-H; 1093-A-F]
F
State of Uttar Pradesh v. Raj Narain (1975) 4 SCC
428:1975 (3) SCR 333; Dinesh Trivedi v. Union of India
(1997) 4 SCC 306:1997 (3) SCR 93; People's Union for Civil
Liberties v. Union of India (2004) 2 SCC 476: 2004 (1) SCR G
232 - referred to ..
Case Law Reference:
1984 (4) sec 21
Referred to.
Para 6
H
A
B
c
D
E
1048
SUPREME COURT REPORTS
[2011] 11 S.C.R.
2004 (3) Suppl. SCR 372 Referred to.
Para 6
2004 (13) sec 383
Referred to.
Para 6
2001 (1) sec 603
Referred to.
Para 6
2007 (10) SCR 464
Referred to.
Para 6
1975 (3) SCR 333
Referred to.
Para 10
1997 (3) SCR 93
Referred to.
Para 10
2004 (1) SCR 232
Referred to.
Para 10
CIVIL APPELALTE JURISDICTION : Civil Appeal No.
6454 of 2011.
From the Judgment & Order datd 5.2.2009 of the Higt
Court at Calcutta in Writ Petition 18189 (W) of 2008.
WITH
C.A. Nos. 6456, 6457-6458, 6459, 6461, 6462, 6464, 64656468 of 2011.
Parag P. Tripathi, ASG, Bhaskar P. Gupta, Mahabir Singh,
P.K. Goswami, Tapash Ray, Dr. Rajiv Dhawan, Tara Chandra
Sharma, Neelam Sharma, Rupesh Kumar, Ajay Sharma, Pijush
K. Roy, Mithilesh Kr.