# THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA v. SHAUNAK H.SATYA & ORS

- **Citation:** [2011] 14 S.C.R. 328
- **Court:** Supreme Court of India
- **Decided:** 2011-09-02
- **Case number:** Civil Appeal No. 7571 of 2011
- **Bench:** R.V. Raveendran, A. K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-institute-of-chartered-accountants-of-india-v-shaunak-h-satya-ors-27563
- **Pages:** 45

## Headnote

Right to Information Act, 2005 - s.8(1)(d) - Examination
c of candidates for enrolment as Chartered Accountants -
Examination held by appellant-lnsf;tute of Chartered
Accountants of India (/CAI) - Whether the instructions and
solutions to questions (if any) given by /CAI to examiners and
moderators, are intellectual property of the /CAI, disclosure
D of which would harm the competitive position of third parties
and therefore exempted under s. 8(1 )(d) of the RT/ Act - Held:
The question papers, solutions to questions and instructions
are the intellectual properties of /CAI - However, what is
exempted from disclosure at one point of time may cease to
E
be exempted at a later point of time, depending upon the
nature of exemption - The appellant examining body is not
liable to give to any citizen any information relating to
question papers. solutions/model answers and instructions
relating to a particular examination before the date of such
F examination - But the position will be different once the
examination is held - Disclosure of the question papers,
model answers and instructions in regard to any particular
examination, would not harm the competitive position of any
third party once the examination is held - In fact the question
papers are disclosed to everyone at the time of examination
G -
The appellant voluntarily publishes the ·suggested
answers" in regard to the question papers in the form of a book
for sale every year, after the examination - Therefore s.8(1)(d)
of the RT/ Act does not bar or prohibit the disclosure of
H
328
INSTITUTE OF CHARTERED ACCOUNTANTS OF
329
1NDIA v. SHAUNAK H.SATYA
question papers. model answers (solutions to questions) and A
instructions if any given to the examiners and moderators ·
after the examination and after the evaluation of answerscripts
is completed. as at that stage they will not harm the
competitive position of any third party.
B
Right tb Information Act, 2005 - s.9 - Examination of
candidates for enrolment as Chartered Accountants -
Examination held by appellant-Institute of Chartered
Accountants of India (/CAI) - Whether providing access to t!Je
information sought (that is instructions and solutions to C
questions issued by /CAI to examiners and moderators) would
involve an infringement of the copyright and therefore the
request for intormation is liable to be rejected under s.9 of the
RT/ Act- Held: The word 'State' used in s.9 of RT/ Act refers
-to the Central or State Government, Parliament or Legislature D,
of a State, or any local or other authorities as described under
Atticle 12 of the Constitution - The reason for using the word
.'State' and not 'public authority' in s.9 of RT/ Act is apparently
because the definition of 'public authority' in the ,A.ct is wider
than the definition of 'State' in Article 12, and includes even
non-government organizations financed directly or indirectly E
by funds provided by the appropriate government - An
application for information would be rejected under s. 9 of RT/
Act, only if information sought involves an infringement of
copyright subsisting in a person other than the .State - /CAI
being a statutory body created by the Chartered Accountants F
Act. 1948 is 'State' - The information sought is a material in
which /CAI claims a copyright - It is not the case of ICAI that
anyone else has a copyright in such material - In fact it has
specifically pleaded that even if the question papers,
solutions/model answers, or other instructions are prepared G
by any third patty for /CAI, the copyright therein is assigned
in favour of /CAI - Providing access to information in respect
of which /CAI holds a copyright, does not involve infringement
of a copyright subsisting in a person other than the State -
H
330
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R..
A
Therefore /CAI is not entitled to claim protection against
disclosure urider s. 9 of the RT/ Act - There is yet another
r.eason why s. 9 of RT/ Act will be inapplicable - The words
'infringem

## Text

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[2011] 14 (ADDL.) S.C.R. 328
A
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF
INDIA
v.
SHAUNAK H.SATYA & ORS.
(Civil Appeal No. 7571 of 2011)
B
SEPTEMBER 2, 2011
[R.V. RAVEENDRAN AND. A. K. PATNAIK, JJ.]
Right to Information Act, 2005 - s.8(1)(d) - Examination
c of candidates for enrolment as Chartered Accountants -
Examination held by appellant-lnsf;tute of Chartered
Accountants of India (/CAI) - Whether the instructions and
solutions to questions (if any) given by /CAI to examiners and
moderators, are intellectual property of the /CAI, disclosure
D of which would harm the competitive position of third parties
and therefore exempted under s. 8(1 )(d) of the RT/ Act - Held:
The question papers, solutions to questions and instructions
are the intellectual properties of /CAI - However, what is
exempted from disclosure at one point of time may cease to
E
be exempted at a later point of time, depending upon the
nature of exemption - The appellant examining body is not
liable to give to any citizen any information relating to
question papers. solutions/model answers and instructions
relating to a particular examination before the date of such
F examination - But the position will be different once the
examination is held - Disclosure of the question papers,
model answers and instructions in regard to any particular
examination, would not harm the competitive position of any
third party once the examination is held - In fact the question
papers are disclosed to everyone at the time of examination
G -
The appellant voluntarily publishes the ·suggested
answers" in regard to the question papers in the form of a book
for sale every year, after the examination - Therefore s.8(1)(d)
of the RT/ Act does not bar or prohibit the disclosure of
H
328
INSTITUTE OF CHARTERED ACCOUNTANTS OF
329
1NDIA v. SHAUNAK H.SATYA
question papers. model answers (solutions to questions) and A
instructions if any given to the examiners and moderators ·
after the examination and after the evaluation of answerscripts
is completed. as at that stage they will not harm the
competitive position of any third party.
B
Right tb Information Act, 2005 - s.9 - Examination of
candidates for enrolment as Chartered Accountants -
Examination held by appellant-Institute of Chartered
Accountants of India (/CAI) - Whether providing access to t!Je
information sought (that is instructions and solutions to C
questions issued by /CAI to examiners and moderators) would
involve an infringement of the copyright and therefore the
request for intormation is liable to be rejected under s.9 of the
RT/ Act- Held: The word 'State' used in s.9 of RT/ Act refers
-to the Central or State Government, Parliament or Legislature D,
of a State, or any local or other authorities as described under
Atticle 12 of the Constitution - The reason for using the word
.'State' and not 'public authority' in s.9 of RT/ Act is apparently
because the definition of 'public authority' in the ,A.ct is wider
than the definition of 'State' in Article 12, and includes even
non-government organizations financed directly or indirectly E
by funds provided by the appropriate government - An
application for information would be rejected under s. 9 of RT/
Act, only if information sought involves an infringement of
copyright subsisting in a person other than the .State - /CAI
being a statutory body created by the Chartered Accountants F
Act. 1948 is 'State' - The information sought is a material in
which /CAI claims a copyright - It is not the case of ICAI that
anyone else has a copyright in such material - In fact it has
specifically pleaded that even if the question papers,
solutions/model answers, or other instructions are prepared G
by any third patty for /CAI, the copyright therein is assigned
in favour of /CAI - Providing access to information in respect
of which /CAI holds a copyright, does not involve infringement
of a copyright subsisting in a person other than the State -
H
330
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R..
A
Therefore /CAI is not entitled to claim protection against
disclosure urider s. 9 of the RT/ Act - There is yet another
r.eason why s. 9 of RT/ Act will be inapplicable - The words
'infringement of copyright' have a specific connotation - A
combined reading of ss. 51 and 52(1)(a) of Copyright Act
B
shows that furnishing of information by an examining body,
in response to a query under the RT/ Act may not be termed.
as an infringement of copyright.
Right to Information Act, 2005 - s.8(1)(e) - Examination
of candidates for enrolment as Chartered Accountants -
C
Examination held by appellant-Institute of Chartered
Accountants of India (/CAI) - Whether the instructions and
solutions to questions are information made available to
examiners and moderators in their fiduciary capacity and
therefore exempted under s. 8(1 )(e) of the RT/ Act - Held: The
D
instructions and solutions to questions are given by the /CAI
to the examiners and moderators to be held in confidence -
The examiners and moderators are in the position of agents
and /CAI is in the position of principal in regard to such
information which /CAI gives to the examiners and
E
moderators to achieve uniformity, consistency and exactness
of evaluation of the answer scripts - When anything is given
and taken in trust or in confidence, requiring or expecting
secrecy and confidentiality to be maintained in that behalf. it
is -held by the recipient in a fiduciary relationship - S. 8(1 )(e)
F
uses the words "information available to a person in his
fiduciary relationship - Significantly s. 8(1 )(e) does not use the
words "information available to a public authority in its fiduciary
relationship .. - The use of the words "person" shows that the
holder of the information in a fiduciary relationship need not
G
only be a 'public authority' as the word 'person' is of much
wider import than the word 'public authority' - Therefore the
exemption under s.8(1)(e) is available not only in regard to
information that is held by a public authority (in this case the
examining body) in a fiduciary capacity, but also to any
H
information that is given or made available by a public
INSTITUTE OF CHARTERED ACCOUNTANTS OF
331
INDIA v. SHAUNAK H.SATYA
authority to anyone else for being held in a fiduciary
A
relationship - Consequently. the instructioris and solutions to
questions communicated by the examining body to the
examiners. headcexaminers and moderators. are information
available to such persons in their fiduciary relationship and
therefore exempted from disclosure under s.8(1 )(d) of RT/ Act. · s
Right to .fnformation Act. 2005:... s.4(1)(b) and (c) -
Information to which RT/ Act applies - Two categories - A)
Information which promotes transparency and accountability
in the working of every public authority. disclosure of which
helps in containing or discouraging corruption, enumerated
C
in clauses (b) and (c) of s.4(1) of RT/ Act; and B) other
·information held by public authorities not falling under
s.4(1)(b) and (c) of RT/ Act - Held: In r(fgard to information
falling under the first category, the public authorities owe a
duty to disseminate the information Widely suo moto to the
D
public so as to make it easily accessible to the public - But
in regard to the second category, there is a need to proceed
with circumspection as it is necessary to find out whether they
are exempted from disclosure - In dealing with information
not falling under s.4(t)(b) and (c). the competent authorities
E
under the RT/ Act will not read the exemptions in s. 8 in a
restrictive manner but in a practical manner so that the other
public interests are preserved and the RT/ Act attains a fine
balance between its goal of attaining transparency of
information and safeguarding the other public interests.
F
Right to Information Act, 2005 - ss. 3, 4, 8, 9, 10 and 11
- Object of the RT/ Act - Held: The object of RT/ Act is to
harmonize the conflicting public interests, that is, ensuring
transparency to bring in accountability aod containing
G
corruption on the one hand, and at the same time ensure that
the revelation of information. in actual practice, does not harm
or adversely affeet other public interests which include
efficient functioning of the governments, optimum u~e of
limited fiscal resources and. preservation of confidentiaNty of
H
332
SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A sensitive information, on the other hand - While ss. 3 and 4
seek to achieve the first objective, ss. 8, 9, 10 and 11 seek to
achieve the second objective.
Right to Information Act. 2005 - s. 8 -
Categories of
8
information which are exempted from disclosure under s.8 -
Held. Among the ten categories of information which are
exempted from disclosure under s. 8 of RT/ Act, six categories
which are described in clauses (a), ·{b), (c), (f), (g) and (h) carry
absolute exemption - Information enumerated in clauses (d),
(e) and (j) on the other hand get only conditional exemption,
C that is the exemption is subject to the overriding power of the
competent authority under the RT/ Act in larger public interest,
to direct disclosure of such information. The information
referred to in clause (!) relates to an exemption for a specific
period, with an obligation to make the said information public
D after such period. The information relating to intellectual
property and the information available to persons in their
fiduciary relationship, referred tp in clauses (d) and (e) of s. 8(1)
do not enjoy absolute exemption. Though exempted, ·if the
competent authority under the Act is satisfied that larger public
E interest warrants disclosure of such information, such
information will have to be disclosed. The competent authority
will have to record reasons for holding that an exempted
information should be disclosed in larger public interest. In
this case the Chief Information Commissioner rightly held that
F the information sought under queries (3) and (5) were
exempted under s. 8(1 )(e) and that there was no larger public
interest requiring denial of the statutory exemption regarding
such information. The High Court fell into an error in holding
that the information sought under queries (3) and (5) was not
G exempted.
Right to Information Act, 2005 -
Examination of
candidates for enrolment as Chartered Accountants -
Examination held by appellant-Institute of Chartered
H Accountants of India (/CAI) - Query of the first respondent
INSTITUTE OF CHARTERED ACCQUNTANTS OF
333
INDIA v. SHAUNAK H.SATYA
required the appellant to disclose information on: (i)numbcf A
of times /CAI had revised the marks of anicahdidate'1or ~ily
,- '
~ ·'. i '
class of candidates under Regulation 39(2) of the Ch;,utered
Accountants Regulations; (ii) criteria used for exercising 'such
discretion for revising t~e marks; (iii) quantum Qf such
revisions; (iv) authority who decides the exercise of discretion a
to make such revision; and (v) number of students (with
particulars of quantum of revision) affected by such revision
held in the last five examinations at all levels - Whether the
High Court was justified in directing the appellant to furnish
to the first respondent the five items of information sought (in c
the query) -
Held: Regulation 39(2) of the Chartered ·
Accountants Regulations provides for what is known as
. 'moderation'. which is a necessary concomitant of evaluation
process of answer scripts where a large number of examiners
are engaged to evaluate a large number of answer scripts -
0 .
Each examining body will have its own standards of
'moderation', drawn up with reference to its own experiences
and the nature and scope of the examinations conducted by
it - /CAI shall have to disclose the standards of moderation
followed by it, if it has drawn up the same, in response to part
(ii) of first respondent's query- In its communication, /CAI had E ·
informed the first respon(Jent that under Regulation 39(2), its
Examining Committee had the authority to revise the mark~
based on the findings of the Head Examiners and any
incidental information in its knowledge - This answers part (iv)
of query as to the authority which decides the exercise of the
F
discretion to make the _revision under Regulation 39(2) - As
the information soughti.mder parts (i), (iii) and (v) of the query
are not maintained and is not available in the form of data
with the appellant in its records, /CAI is not bound to furnish
the same - Chartered Accountants Regulations, 1988 -
G ·
Regulation 39(2).
Right to Information Act, 2005 -
Examination of
candidates for enrolment as Chartered Accountants -
Examination held by appellant-Institute of Chartered H.
334
SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R
A Accountants of India (/CAI) - Held: On facts, it cannot be said
that first respondent had indulged in improper use of RT/ Act
- His application was intended to bring about transparency
and accountability in the functioning of /CAI - However, how
'
B
far he was entitled to the information was a different issue.
Right to Information Act, 2005 - New regime of disclosure
of maximum information - Duty of competent authorities
under the RT/ Act to maintain a proper balance - Held:
Examining bodies like Institute of Chartered Accountants of
C India (/CAI) should change their old mindsets and tune them
to the new regime - Accountability and prevention of
corruption is possible only through transparency - In its
wisdom, the Parliament has chosen to exempt only certain
categories of information from disclosure and certain
organizations from the applicability of the Act - As the
D examining bodies have not been exempted, and as the
examination processes of examining bodies have not been
exempted, the examining bodies will have to gear themselves
to comply with the provisions of the RT/ Act - Additional
workload is not a defence -
If there are practical
E insurmountable difficulties, it is open to the examining bodies
to bring them to the notice of the government for consideration
so that any changes to the Act can be deliberated upon -
However, it is necessary to make a distinction in regard to
information intended to bring transparency, to improve
F
accountability and to reduce corruption, falling under s.4(1)(b)
and (c) and other information which may not have a bearing
on accountability or reducing corruption - The competent
authorities under the RT/ Act will have to maintain a proper
balance so that while achieving transparency, the demand for
G information does not reach unmanageable proportions
affecting other public interests, which include efficient
operation of public authorities and government, preservation
of confidentiality of sensitive information and optimum use of
limited fiscal resources.
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF
335
INDIA v. SHAUNAK H.SATYA
Words and Phrases - Term 'intellectual property' -
A
Meaning of.
The appellant Institute of Chartered Accountants of
India ('ICAI') is a body corporate established under
section 3 of the Chartered Accountants Act, 1949. One of 8
the functions of the appellant council is to conduct the
examination of candidates for enrolment as Chartered
Accountants. The first respondent appeared in the
Chartered Accountants' final examination conducted by
ICAI. The results were declared. The first respondent who C
was not successful in the examination applied for
verification of marks. The appellant carried out the
verification in accordance with the provisions of the
Chartered Accountants Regulations, 1988 and found that
there was no discrepancy in evaluation of answerscripts.
The appellant informed the first respondent accordingly. D
Subsequently, the appellant submitted an application
seeking information under 13 heads, under the Right to
Information Act, 2005 ('RTI Act). The appellant gave
responses/ information in response to the 13 queries. Not
being satisfied with the same, the respondent filed an E
appeal before the appellate authority. The appellate
authority dismissed the appeal, concurring with the order
of the Chief Public Information Officer of the appellant.
The first respondent thereafter filed a second appeal
before the Central Information Commission ( 'CIC') in F
regard to queries (1) to (5) and (7) to (13). CIC rejected the
appeal in regard to queries 3, 5 and 13 (as also Query 2)
while directing the disclosure of information in regard to
the other questions.
Feeling aggrieved by the rejection of information G
sought under items 3, 5 and 13, the first respondent
approached the High Court by filing a writ petition. The
High Court allowed the said petition and directed the
appellant to supply the information in regard to queries H
336
SUPREME COURT REPORTS [2011) 14 (ADDL.) $.C.R.
A 3, 5 and 13. The said order of the High Court is
challenged in the instant appeal.
The appellant submitted that the information sought
as per queries (3) and (5) - that is, instructions and model
8
answers, if any, issued to the examiners and moderators
by ICAI could not be disclosed as they were exempted
from disclosure under cl~uses (d) and (e) of sub-section
(1) of Section 8 of RTI Act and that the request for
information was also liable to be rejected under section
9 of the Act. They also contended that in regard to query
C No.(13), information available had been furnished, apart
from generally Invoking section 8(1 )(e) to claim
exemption ..
On the said contentions, the following questions
D arose for consideration:
E
F
G
H
(i) Whether the instruction~ and solutions to
questions (if any) given by ICAI ·to examiners and
moderators, are intellectual property of the ICAI,
disclosure of which would harm the competitiv~
position of third parties and therefore exempted
under section 8(1 )(d) of the RTI Act?
(ii) Whether providing access to the information
sought (that is instructions and solutions to
questions issued by ICAI to examiners and
moderators) would involve an infringement of the
copyright and therefore the request for information
is liable to be rejected under section 9 of the RTI Act?
(iii) Whether the instructions and solutions to
questions are information made available to
examiners and moderators in their fiduciary capacity
and therefore exempted under section 8(1)(e) of the
RTI Act?
(iv) Whether the High Court was justified in directing
INSTITUTE OF CHARTERED ACCOUNTANTS OF
337
INDIA v. SHAUNAK H.SATYA
the appellant to furnish to the first respondent five
A
items of information sought (in query No.13) relating
to Regulation 39(2) of Chartered Accountants
Regulations, 1988?
Partly allowing the appeal, the Court
8
HELD: 1. The term 'intellectual property' refers to a
cate·gory of intangible rights protecting commercially
valuable products of human intellect comprising primarily
trade· mark, copyright and patent right, as also trade
secret rights, publicity rights, moral rights and rights C
against unfair competition. Question papers, instructions
regarding evaluation and solutions to questions (or
model answers) which are furnished to examiners and
moderato!"s in connection with evaluation of answer
scripts, are literary works which are products of human
D
intellect and therefore subject to a copyright. The paper
setters and authors thereof (other than employees of
ICAI), who are the first owners thereof are required to
assign their copyright in regard to the question papers/
solutions in favour of ICAI. Standard communication is
E
sent by ICAI in this behalf. In response to it, the paper
setters/authors give declarations of assignment,
assigning their copyrights In the question papers and
solutions prepared by them, In favour of ICAI. Insofar as .
instructions prepared by the employees of ICAI, the
F
copytight vests i-n1CAI. Consequently, the question
papers, solutions to questions and instructions are the
intellectual properties of ICAI. [Para 1 OJ [357-D-F; 358-CD)
1.2. Information can be sought under the RTI Act at : G
different stages or different points of time. What is
exempted from disclosure at one point of time may cease
to be exempted at a later point of time, depending upon
the nature of exemption. For example, any information
which is exempted from disclosure under section 8, is
H
338
SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A liable to be disclosed if the application is made in regard
to the occurrence or event which took place or occurred
or happened twenty years prior to the date of the request,
vide section 8(3) of the RTI Act. In other words,
information which was exempted from disclosure, if an
e application is made within twenty years of the
occurrence, may not be exempted If the application is
made after twenty years. Similarly, if information relating
to the intellectual property, that is the question papers,
solutions/model answers and instructions, in regard to
c any particular examination conducted by the appellant
cannot be disclosed before the examination ·is held, as it
would harm the competitive position of innumerable third
parties who are taking the said examination. Therefore it
is obvious that the appellant examining body is not liable
0 to give to any citizen any information relating to question
papers, solutions/model answers and instructions
relating to a particular examination before the date of
such examination. But the position will be different once
the examination is held. Disclosure of the ques!ion
papers, model answers and instructions in regard to any
· E particular examination, would not harm the competitive
position of any third party once the examination is held.
In fact the question papers are disclosed to everyone at
the time of examination. The appellant voluntarily
publishes the "suggested answers" in regard to the
F question papers in the form of a book for sale every year,
after the examination. Therefore section 8(1)(d) of the RTI
Act does not bar or prohibit the disclosure of question
papers, model answers (solutions to questions) and
instructions if any given to the E:xaminers and
G moderators after the examination and after the evaluation
of answerscripts is completed, as at that stage they will
not harm the competitive position of any third party. It
cannot be said that if an information is exempt at any
given point of time, it continues to be exempt for all time
H to come. [Para 12] [359-A-F; 360-A]
to.
INSTITUTE OF CHARTERED ACCOUNTANTS OF
339
INDIA v. SHAUNAK H.SATYA
Black's Law Dictionary, 7th Edition, page 813 - referred A
2.1. Section 9 of the RTI Act provides that a Central
or State Public Information Officer may reject a request
for information where providing access to such 9
information would involve an infringement of copyright
subsisting in a person other than the State. The word
'State' used i11 section 9 of RTI Act refers to the Central
or State Government, Parliament or Legislature of a State,
or any local or other authorities as described under
Article 12 of the Constitution. The reason for using the C
word 'State' and not 'public authority' in section 9 of RTI
Act is apparently because the definition of 'public
authority' in the Act is wider than the definition of 'State'
in Article 12, and includes even non-government
organizations financed directly or indirectly by funds D
provided by the appropriate government. An application
for information would be rejected under section 9 of RTI
Act, only if information sought involves an infringement
of copyright subsisting in a person other than the State.
ICAI being a statutory body created by the Chartered E
Accountants Act, 1948 is 'State'. The information sought
Is a material in which iCAI claims a copyright. It is not the
case of ICAI that anyone else has a copyright in such
material. In fact it has specifically pleaded tha~ even if the
question papers, solutions/model answers, or other F
instructions are prepared by any third party for ICAI, the
copyright therein is assigned in favour of ICAI. Providing
access to information in respect of which ICAI holds a
copyright, does not involve infringement of a copyright
subsisting in a person other than the State. Therefore ICAI G
is not entitled to claim protection against disclosure
under section 9 of the RTI Act. [Para 1~_),(360-8-G]
2.2. There ·is yet another reasqn why section 9 of RTI
Act will be inapplicable. The words 'infringement of H
340
SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A cepyright' have a specific connotation. Section 51 of the
Copyright Act, 1957 provides when a copyright in a work
shall be deemed to be infringed. Section 52 of the Act
enumerates the acts which· are not infringement of a
copyright. A combined reading of sections 51 and
B 52(1 )(a) of Copyright Act shows that furnishing of
information by an examining body, in response to a
query under the RTI Act may not be termed as an
infringement of copyright. [Para 14) [360-H; 361-A-B]
3.1. The instructions and 'solutions to questions'
C issued to the examiners and moderators in connection
with evaluation of answer scripts is the Intellectual
property of ICAI. These are made available by ICAI to the
examiners and moderators to enable them to evaluate the
answer scripts correctly and effectively, In a proper
D manner, to achieve uniformity and consistency In
evaluation, as 1a large number of evaluators and
moderators are engaged by ICAI in connection with the
evaluation. Th.e instructions and solutions to questions
are given by the ICAI to the examiners and moderators
!; to be held in confidence. The examiners and moderators
are required to maintain absolute secrecy and cannot
disclose the answer scripts, the evaluation of answer
scripts, the instructions of ICAI and the solutions to
questions made available by ICAI, to anyone. The
F examiners and moderators are in the position of agents
and ICAI Is in the position of principal In regard to such
information which ICAI gives to the examiners and
moderators to achieve uniformity, consistency and
exactness of. evaluation of the answer scriots. When
G anything is given and taken in trust or in confidence,
requiring or expecting secrecy and confidentiality to be
maintained in that behalf, it Is held by the. recipient in a
fiduciary relationship.[Para 16) [362-8-E]
H
3.2. Section 8(1)(e) uses the words "Information
INSTITUTE OF CHARTERED ACCOUNTANTS OF
341
INDIA v. SHAUNAK H.SATYA
available to a person in his fiduciary relationship. A
Significantly section 8(1 )(e) does not use the words
"information available to a public authority in its fiduciary
relationship". The use of the words "person" shows that
the holder of the information in a fiduciary relationship
need not only be a 'public authority' as .the word 'person' B
is of much wider import than the word 'public authority'.
-Therefore the exemption under section 8(1)(e) is available
not only in regard to information that is held by a public
authority (in this case the examining body) in a fiduciary
capacity, but also to any information that is given or made c
available by a public authority to anyone else for being
held in a fiduciary relationship. In other words, anything
given and taken in confidence expecting confidentiality
to be maintained will be information available to a person
in fiduciary relationship. As a consequence, it has to be
0
held that the instructions and solutions to questions
communicated by the examining body to the examiners,
head-examiners and moderators, are information
available to such persons in their fiduciary relationship
and therefore exempted from disclosure under section
8(1 )(d) of RTI Act. [Para 17] [362-F-H; 363-A-B]
E
3.3. The information to which RTI Act applies falls into
two categories, namely, (i) information which promotes
transparency and accountability in the working of every
public authority, disclosure of which helps in containing
F
or discouraging corruption, enumerated in clauses (b)
and (c) of section 4(1) of RTI Act; and (ii) other information
held by public ·authorities not falling under section 4(1 )(b)
and (c) of RTI Act. In regard to information falling under
the first category, the public authorities owe a duty to G
disseminate the information widely suo moto to the
public so as to make it easily accessible to the public. In
regard to information enumerated or required to be
enumerated under section 4(1)(b) and (c) of RTI Act,
necessarily and naturally, the competent authorities H
342
SUPREME COURT REPORTS [2011] 14 (ADDL.} S.C R
A
under the RTI Act, will have to act in a pro-active manner
so as to ensure accountability and ensure that the fight
against corruption goes on relentlessly. But in regard to
other information which do not fall under Section 4(1)(b)
and (c) of the Act, there is a need to proceed with
B circumspection as it is necessary to find out whether they
are exempted from disclosure. One of the objects of
democracy is to bring about transparency of information
to contain corruption and bring about accountability. But
achieving this object does not mean that other equally
C important public interestc; including efficient functioning
of the governments and public authorities, optimum use
of limited fiscal resources, preservation of confidentiality
of sensitive information, etc. are to be ignored or
sacrificed. The object of RTI Act is to harmonize the
0
conflicting public interests, that is, ensuring transparency
to bring in accountability and containing corruption on
the one hand, and at the same time ensure that the
revelation of information, in actual practice, does not
harm or adversely affect other public interests which
include efficient functioning of the governments,
E optimum use of limited fiscal resources and preservation
of confidentiality of sensitive information, on the other
hand. While sections 3 and 4 seek to achieve the first
objective, sections 8, 9, 10 and 11 seek to achieve the
second objective. Therefore when section 8 exempts
F
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 fulfilment and preservation of
democratic ideals. Therefore in dealing with information
G not falling under section 4(1)(b) and (c), the competent
authorities under the RTI Act will not read the exemptions
in section 8 in a restrictive manner but in a practical
manner so that the other public interests are preserved
and the RTI Act attains a fine balance between its goal
H of attaining transparency of information
and
INSTITUTE OF CHARTERED ACCOUNTANTS OF
343
INDIA v. SHAUNAK H.SATYA
safeguarding the other public.interests. [Para 18] [363-CA
H; 364-A-D]
3.4. Among the ten categories of information which
are exempted from disclosure under section 8 of RTI Act,
six categories which are described in clauses (a), (b), (c),
8
(f), (g) and (h) carry absolute exemption. Information
enumerated in clauses (d), (e) and U) on the other hand
get only conditional exemption, that is the exemption is
subject to the overriding power of the competent
authority under the RTI Act in larger public interest, to
direct disclosure of such information. The information C
referred to in clause (i) relates to an exemption for a
specific period, with an obligation to make the said
information public after such period. The information
relating to intellectual property and the information
available to persons in their fiduciary relationship, D
referred to in clauses (d) and (e) of section 8(1) do not
enjoy absolute exemption. Though exempted, if the
competent authority under the Act is satisfied that larger
public interest warrants disclosure of such information,
such information will have to be disclosed. The E
competent authority will have to record reasons for
holding that an exempted information should be
disclosed in larger public interest. [Para 19) [364-E-H;
365-A]
F
3.5. In this case the Chief Information Commissioner
rightly held that the information sought under queries (3)
and (5) were exempted under section 8(1 )(e) and that
there was no larger public interest requiring denial of the
statutory exemption regarding such information. The G
High Court fell into an error in holding that the information
sought under queries (3) and (5) was not exempted. [Para
20) [365-B-C]
Central Board of Secondary Education & Anr v. Aditya
Bandopadhyay & Ors. 2011 (8) SCALE 645 - referred to.
H
344
SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A
4.1. Query (13) of the first respondent required the
appellant to disclose the following information: (i) The
number of times ICAI had revised the marks of any
candidate or any class of candidates under Regulation
39(2); (ii) the criteria used for exercising such discretion
B for revising the marks; (iii) the quantum of such revisions;
(iv) the authority who decides the exercise of discretion
to make such revision; and (v) the number of students
(with particulars of quantum of revision) affected by such
revision held in the last five examinations at all levels.
C [Para 21] [365-D-E]
4.2. Regulation 39(2) of the Chartered Accountants
Regulations, 1988 provides that the council may in its
discretion, revise the marks obtained by all candidates or
a section of candidates in a particular paper or papers or
D in the aggregate, in such manner as may be necessary
for maintaining its standards of pass percentage
provided in the Regulations. Regulation 39(2) thus
provides for what is known as 'moderation', which is a
necessary concomitant of evaluation process of answer
E scripts where a large number of examiners are engaged
to evaluate a large number of answer scripts. Each
examining body will have its own standards of
'moderation', drawn up with reference to its own
experiences and the nature and scope of the
F examinations conducted by it. ICAI shall have to disclose
the said standards of moderation followed by it, if it has
drawn up the same, In response to part (ii) of first
respondent's query (13). [Para 22] [365-F-H; 368-H; 369A]
G
4.3. In its communication dated 22.2.2008, ICAI
informed the first respondent that under Regulation 39(2),
its Examining Committee had the authority to revise the
marks based on the findings of the Head Examiners and
any incidental information in its knowledga. This answers
H part (Iv) of query (13) as to the authority which decides
INSTITUTE OF CHARTERED ACCOUNTANTS OF
345
INDIA v. SHAUNAK H.SATYA
the exercise of the discretion to make the revision under
A
Regulation 39(2). As the information sought under parts
(I), (iii) and (~)of query (13) are not maintained and is not
available in the form of data with the appellant in its
records, ICAI is not bound to furnish the same. [Paras 23,
24]
.
B
Sanjay Singh v. U.P. Public Service Commission - 2007
(3) SCC 720: 2007 (1) SCR 235 - referred to.
5. It cannot be said that first respondent had
indulged in improper use of RTI Act His applicatioh is C
intended to bring about transparency and accountability
in the functioning of ICAI. How far hel is entitled to the
information is a different issue. Examining bodies like ICAI
should change their old mindsets and tune them to the
new regime of disclosure of maximum information. Public D
authorities should realize that in an era of transparency,
..
previous practices of unwarranted secrecy have no
longer a place. Accountability and prevention of
corruption is possible only' through transparency.
Attaining transparency no doubt would involve additional
E
work with reference to maintaining records and
furnishing information. Parliament has enacted the RTI
Act providing access to information, after great debate
and deliberations by the Civil Society and the Parliament.
In its wisdom, the Parliament has chosen to exempt only
F
certain categories of information from disclosure and
certain organizations from the applicability of the Act. As
the examining bodies have not been exempted, and as
the examination processes of examining bodies have not
been exempted, the examining bodies will have to gear G
themselves to comply with the provisions of the RTI Act.
Additional workload is not a defence. If there are practical
insurmountable difficulties, it is open to the examining
bodies to bring them to the notice of the government for
H
346
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A consideration so that any changes to the Act can be
deliberated upon. [Para 25) [370-A-H; 371-A-E]
6. However, it is necessary to make a distinction in
regard to information intended to bring transparency, to
8 improve accountability and to reduce corruption, falling
under section 4{1)(b) and {c) and other information which
may not have a bearing on accountability or reducing
corruption. The competent authorities under the RTI Act
will have to maintain a proper balance so that while
C achieving transparency, the demand for information does
not reach unmanageable proportions affecting other
public interests, which include efficient operation of
public authorities and government, pre'servation of
confidentiality of sensitive information and optimum use
of limited fiscal resources. [Para 26) (371-F-H; 372-A]
D
7. In view of the above, the order of the High Court
is set aside and the order of the CIC is restored, subject
to one modification in regard to query (13): /CA/ to
disclose to the first respondent, the standard criteria, if any,
E relating to moderation, employed by it, for the purpose of
making revisions under Regulation 39(2). [Para 27] (372-B]
F
Case Law Reference:
2011 (8) SCALE 645
referred to
2007 {1) SCR 235
referred to
Para 15
Para 22
CIVIL AP PELLA TE JURISDICTION : Civil Appeal No.
7571 of 2011.
G
From the Judgment & Order dated 30.11.2010 of the High
H
Court of Judicature at Bombay in Writ Petition No. 378 of 2009.
K.K. Venugopal, Ramji Srinivasan, Pramod Dayal, Nikunj
Dayal, Rakesh Agarwal for the Appellant.
INSTITUTE OF CHARTERED ACCOUNTANTS OF
347
INDIA v. SHAUNAK H.SATYA
Rohan Rajadyaksha, Ranjeeta Rohtagi for the A
Respondents.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. Leave granted.
8
2. The appellant Institute of Chartered Accountants of India
(for short 'ICAI') is a body corporate established under section
3 of the Chartered Accountants Act,· 1949_ One of the functions
of the appellant council is to conduct the examination of
candidates for enrolment as Chartered Accountants. The first c
respondent appeared in the Chartered Accountants' final
examination conducted by ICAI in November, 2007. The results
were declared in January 2008. The first respondent who was
not successful in the examination applied for verification of
marks. The appellant carried out the verification in accordance 0
with the provisions of the Chartered Accountants Regulations,
1988 and found that there was no discrepancy in evaluation of
answerscripts. The appellant informed the first respondent
accordingly.
3. On 18.1.2008 the appellant submitted an application
E
seeking the following information under 13 heads, under the
Right to Information Act, 2005 ('RTI Act' for short) :
"1) Educational qualification of the examiners &
Moderators with subject wise classifications. (you may not
F
give me the names of the examiners & moderators).
2) Procedure established for evaluation of exam papers.
3) Instructions issued to the examiners. and moderators
oral as well as written if any.
G
4) Procedure established for selection of examiners &
moderators.
5) Model answers if any given to the examiners & H
348
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A
moderators if any.
6) Remuneration paid to the examiners & moderators.
7) Number of students appearing for exams at all levels in
the last 2 years (i.e. PE1/PE2/PCC/CPE/Final with break
8
up)
c
D
E
F
G
H
8) Number of students that passed at the 1st attempt from
the above.
9) From the number of students that failed in the last 2
years (i.e.