IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33718 of 2010(L)
1. THE KERALA PUBLIC SERVICE COMMISSION
... Petitioner
2. THE STATE PUBLIC INFORMATION OFFICER
3. APPELLATE AUTHORITY & ADDITIONAL
Vs
1. STATE INFORMATION COMMISSION,KERALA
... Respondent
2. ASHA BHASKAR
For Petitioner :SRI.P.C.SASIDHARAN, SC, KPSC
For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :09/03/2011
O R D E R
Thottathil B.Radhakrishnan
&
P.S.Gopinathan, JJ.
= = = = = = = = = = = = = = = = = = = = = = = =
W.P.(C).Nos.33718/2010-L, 5755/2007-I,
12297/2007-L, 3585/2008-B, 15363/2008-D,
15424/2008-J, 22386/2008-M, 6177/2010-V,
9250/2010-E, 25779/2010-V, 23839/2010-D,
32772/2010-V, 12032/2009-Y, 12160/2009-L,
34585/2007-P, 33620/2009-V, 35723/2008-C,
22398/2008-N, 15426/2008-J, 22230/2007-U,
6355/2010-T, 22231/2007-V, 3577/2008-A,
12312/2007-N, 23458/2008-P, 37772/2008-V,
11876/2009-D, 23539/2008-B, 11687/2009-E,
33616/2009-V, 11042/2010-E, 2207/2008-K,
10971/2010-V, 5978/2010-V, 35840/2008-N
& 5622/2007-T
= = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 9th day of March, 2011.
Judgment
"CR"
Thottathil B.Radhakrishnan, J.
1.These writ petitions raise the question of
applicability of the Right to Information Act,
2005, hereinafter referred to as the "RTI Act" to
the Kerala Public Service Commission,
hereinafter, "PSC", for short. These matters are
WPC33718/10 & con.cases -: 2 :-
referred to the Division Bench noticing an
apparent conflict between the decisions of this
Court in Public Information Officer, University
of Calicut and another v. State Information
Commission[2010(1) KHC 2], for short, "UNICAL",
and Treesa Irish v. Central Public Information
Officer[2010(3) KLT 965], "TREESA", for short.
2.The PSC challenges different decisions of the
State Information Commission, "SIC", for short,
overruling its stand that information with the
PSC cannot be accessed under the RTI Act and that
the answer scripts, marks awarded, including
interview marks and other details touching the
process of examination and interview cannot be
made available, except to the extent provisions
are made for such access by the regulations and
decisions of the PSC.
3.In support of the writ petitions, Adv. Alexander
Thomas, the learned standing counsel for the PSC
argued that the substantive source of the right
to information is the constitutional provision in
WPC33718/10 & con.cases -: 3 :-
Article 19(1)(a) and hence, what is not available
as part of that right cannot be treated as
available under the RTI Act. He argued that RTI
Act applies only to the extent of the concept of
"information" as deducible from Article 19(1)(a)
of the Constitution and not beyond. He,
therefore, said that if a particular information
would fall beyond the pale of Article 19(1)(a),
the same would not be accessible under the RTI
Act. Making reference to the decisions of this
Court in Thalapalam Service Co-operative Bank
Ltd. v. Union of India[2009(2) KLT 507]
(Thalapalam I), Thalapalam Service Co-operative
Bank Ltd. v. Union of India[2009(3) KLT 1001]
(Thalapalam II) and S.N.College v. State of
Kerala[2010(1) KLT 691](S.N.College), it was
argued that it has been held in those cases that
the concept of information under RTI Act is with
reference to Article 19(1)(a) of the
Constitution. He accordingly argued that beyond
that, the provisions of the RTI Act cannot be
extended. He said that this restrictive approach
has to be applied since it has been held by the
WPC33718/10 & con.cases -: 4 :-
Apex Court in Maharashtra State Board of
Secondary and Higher Secondary Education v.
Paritosh Bhupeshkumar Sheth[(1984)4 SCC 27],
hereinafter, Paritosh, that in terms of the
Constitution, there is no right to information,
including as regards answer scripts. He said that
the law laid by the Apex Court in that regard is
also that if such right is recognized, it would
lead to acceding to a further right to demand
revaluation and such situation would necessarily
lead to uncertainty, lack of finality and
administrative inconvenience to the examining
bodies. He also pointed out that even in terms of
the Constitution, principles of secrecy and
public interest immunity would stand to advise
that information in relation to PSC, in
particular, matters relating to examinations,
ought not to be released as information, invoking
the provisions of the RTI Act. He also made
reference to Secy., W.B.Council of Higher
Secondary Education v. Ayan Das[(2007)8 SCC
242], Pramod Kumar Srivastava v. Chairman, Bihar
Public Service Commission[(2004)6 SCC 714],
WPC33718/10 & con.cases -: 5 :-
Board of Secondary Education v. Pravas Ranjan
Panda[(2004) 13 SCC 383], H.P.Public Service
Commission v Mukesh Thakur[(2010)6 SCC 759],
Sidhik v. State of Kerala[2010(1) KLT 113] and
the decision of the Apex Court in Kerala Public
Service Commission v. Narayanan Kunchumbidukka
[Civil Appeal No.461 of 2008][Ext.P6 in WP(C).
33718/2010], to argue that the said decisions
categorically lay down that access to information
in relation to examination materials is not
permissible except to the extent where the
examining body permits such access on the basis
of regulations or decisions that it has taken for
the management of affairs in relation to
examinations. Adv. Alexander Thomas further
argued that the Commission has a fiduciary role
qua the society in public interest and it holds
and acts in trust; in public interest; in a
fiduciary capacity qua the public at large. He
said that the term "fiduciary capacity" in
Section 8 of the RTI Act needs to be so
understood. He argued that information regarding
examiners and others involved in the process has
WPC33718/10 & con.cases -: 6 :-
to be maintained in secrecy. Otherwise, it would
lead to different situations which would be
susceptible even to corruption. Dilating on the
concept of fiduciary status, he argued that the
restricted concept of fiduciary relations as
understood in private law is not applicable and
the concept of fiduciary relations in the context
of public trust and public involvement should be
a larger concept.
4.Adv. M.Ajay, the learned counsel for the SIC
argued that the decisions rendered by this Court
in Thalapalam I & II and S.N.College do not lay
down any principle of restrictive approach in
appreciating the concept of information for the
purpose of the RTI Act. He said that this Court
had only indicated in those decisions, the
evolution of law in that regard. He further
argued that the basic approach of the RTI Act is
one that conceives maximum disclosure and minimum
exemptions. This, he said, is discernible from
the RTI Act as a whole and also on the basis of
its Preamble and the Statement of Objects and
WPC33718/10 & con.cases -: 7 :-
Reasons. He made reference to the decisions of
the Delhi High Court in ICAI v. Central
Information Commissioner & another[W.P(C).
No.8529 of 2009], Allahabad High Court in Public
Information Officer v. State Information
Commission, U.P. and others[W.P.No.3262 (MB) of
2008], Pritam Rooj v. University of Calcutta[AIR
2008 Cal.118], University of Calcutta v. Pritam
Rooj[AIR 2009 Cal.97], The Tamil Nadu Public
Service Commission v. The Tamil Nadu Information
Commission[W.P.No.34630/2007 & connected cases],
D.Parisuthanathan v. Public Information
Officer/Registrar General, High Court, Madras
[W.P.No.1285/2009 & connected cases], Tamil Nadu
Road Development Company Limited v. Tamil Nadu
Information Commissioner[W.A.No.811/2008 &
M.P.No.1/2008] and Union Public Service
Commission v. Shiv Shambhu[2008-ILR Delhi 17-
2016 :2008(TLS) 141374] and Secretary General,
Supreme Court of India v. Subhash Chandra
Agarwal[LPA 501/2009], to argue that the
provision for information in terms of the RTI Act
has to be understood on the basis of the
WPC33718/10 & con.cases -: 8 :-
definition of "information" in that Act. He
further argued that the validity of the RTI Act
not being under challenge, there is no reason to
tinker with the specific definition given by the
legislature to the term "information" in the RTI
Act. He argued that the RTI Act is a self
contained Code and it should be taken that the
Parliament were aware of the laws as laid by the
Apex Court while it made the RTI Act and if it
intended to make any departure in the case of
examinations etc., such departure or exception
would have necessarily found expression in the
Act itself. He pointed out that the fiduciary
concept is not available as a plea for the PSC to
deny information under the RTI Act and the
fiduciary relationship as projected by the PSC,
has no application because the intention of RTI
Act is to provide information, with the ultimate
goal to ensure purity and transparency in matters
relating to governance and selection. He said
that, by all means, PSC cannot but be treated as
part of the process of governance of the State.
WPC33718/10 & con.cases -: 9 :-
5.Section 3 of the RTI Act provides that, subject
to the provisions of that Act, all citizens shall
have the right to information. That right is
defined in section 2(j) of the RTI Act. It is the
right to information, accessible under that Act,
which is held by or under the control of any
public authority. It includes the right to access
any information as stated in that provision.
Every public authority stands with the
obligations cast on it under section 4 of that
Act. The PSC does not, and cannot, have the
contention that it is not a "public authority" as
defined in section 2 (h) of the RTI Act. The
obligations in terms of section 4 of the Act are
incurred by any authority or body or institution
which would be a public authority in terms of
section 2 (h) of that Act. Adverting to section 8
of that Act, it can be seen that there is no
institutional exception or exemption from the
applicability of the provisions of the Act. The
exemption from disclosure of information provided
for by section 8 of that Act is one based on the
type or class of information. In the absence of
WPC33718/10 & con.cases -: 10 :-
any such exemption being granted to any class or
type of information with any public authority,
the obligations of that public authority in terms
of the Act and the susceptibility of information
with it, to access in terms of the provisions of
the RTI Act cannot be avoided. Thus, PSC having
been brought under the trappings of the RTI Act,
it is not conferred with the immunity as an
institution, from the obligations, liabilities
and exposure of information held by or under its
control, in terms of that Act. There is also no
provision in section 8 of that Act classifying
any information as eligible for exemption from
disclosure.
6.Section 2 of the RTI Act is the dictionary of
that legislation. It contains "Definitions".
Clause (f) thereof says that "information" means
any material in any form, including records,
documents, memos, e-mails, opinions, advices,
press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data
material held in any electronic form and
WPC33718/10 & con.cases -: 11 :-
information relating to any private body which
can be accessed by a public authority under any
other law for the time being in force. The
Honourable Supreme Court stated in Hariprasad
Shivshanker Shukla v. A.D.Divelkar[AIR 1957 SC
121], that "There is no doubt that when the Act
itself provides a dictionary for the words used,
we must look into that dictionary first for an
interpretation of the words used in the statute.
We are not concerned with any presumed intention
of the legislature; our task is to get at the
intention as expressed in the statute." When the
statutory provision defining a particular term
says that the said term shall mean what is stated
in that definition clause, it shall mean only
that; nothing more, nothing less; for the purpose
of the statute which carries that definition.
When a statute says that a word or phrase shall
"mean" -- not merely that it shall "include" --
certain things or acts, the definition is a hard-
and-fast one, and no other meaning can be
assigned to the expression than the one put down
in definition. A definition is an explicit
WPC33718/10 & con.cases -: 12 :-
statement of the full connotation of a term. -
See Punjab Land Development and Reclamation
Corpn. Ltd. v. Presiding Officer[(1990) 3 SCC
682] and P. Kasilingam v. P.S.G.College of
Technology[1995 Supp (2) SCC 348] rendered
relying on Gough v. Gough[(1891) 2 QB 665: 65 LT
110]. As noticed in S.N.College, the Legislature
has the power to define a word even artificially.
When a statute says that a word or phrase shall
"mean" a particular thing, certain things or
acts, that definition is a hard-and-fast one and
no other meaning can be assigned to the
expression than is put down in that definition.
That definition is an explicit statement of the
full connotation of a term.
7.In CST v. Union Medical Agency[(1981) 1 SCC 51],
the Apex Court stated that it is a well-settled
principle that when a word or phrase has been
defined in the interpretation clause, prima
facie, that definition governs whenever that word
or phrase is used in the body of the statute. But
where the context makes the definition clause
WPC33718/10 & con.cases -: 13 :-
inapplicable, a defined word when used in the
body of the statute may have to be given a
meaning different from that contained in the
interpretation clause; all definitions given in
an interpretation clause are, therefore, normally
enacted subject to the usual qualification
-- "unless there is anything repugnant in the
subject or context", or "unless the context
otherwise requires". Even in the absence of an
express qualification to that effect, such a
qualification is always implied. The meaning of a
word or expression defined may have to be
departed from on account of the subject or
context in which the word had been used and that
will be giving effect to the opening sentence in
definition section, namely "unless the context
otherwise requires". In view of this
qualification, the court has not only to look at
the words but also to look at the context, the
collocation and the object of such words relating
to such matter and interpret the meaning intended
to be conveyed by the use of the words in a
particular section. But where there is no
WPC33718/10 & con.cases -: 14 :-
obscurity in the language of the section, there
is no scope for the application of the rule ex
visceribus actus. This rule is never allowed to
alter the meaning of what is of itself clear and
explicit. As observed in Pandey & Co. Builders
(P) Ltd. v. State of Bihar[(2007) 1 SCC 467],
in view of the provision "unless the context
otherwise requires" in the definition clause, one
may not stick to the definition, when the
provision in the interpretation clause shall lead
to anomalous and absurd results. Such course
shall not be resorted to otherwise. The court
cannot read anything into a statutory provision
which is plain and unambiguous. A statute is an
edict of the legislature. The language employed
in a statute is the determinative factor of
legislative intent.
8.The question of contextual construction of any
particular provision of the RTI Act and the
consequential excusing of the PSC from any such
provision, by using the tool "unless the context
otherwise requires" in the opening part of
WPC33718/10 & con.cases -: 15 :-
section 2 of that Act, do not arise. This is
because, to a large extent, the plea of the PSC
is that the RTI Act does not apply to all
information held by it or under its control. The
argument advanced is that there has to be a
selective classification of the information held
by it or under its control. The plea is that
while information relating to its governance and
administration may be available for access under
the RTI Act, information, including materials
relating to examinations, are not accessible
information since they do not relate to
governance or administration of PSC. The argument
is not that the application of the definition of
the term "information", as contained in the
dictionary to the statute, interpreting any
particular provision of the RTI Act, would lead
to anomalous and absurd results. In its
substance, the plea of PSC is that the definition
of the term " information" in section 2 of the
RTI Act should be understood differently; not in
relation to the interpretation or application of
any particular provision of that Act; but while
WPC33718/10 & con.cases -: 16 :-
applying the provisions of that Act to the PSC.
Fundamentally, this contention of PSC does not
stand. As already noticed, PSC cannot but fall
under the definition of "public authority" in the
RTI Act. Having regard to the format of the
definition of that term in the RTI Act, there is
no intelligible differentia discernible in the
context of that Act, to cull out any differential
treatment for the PSC or information held by it
or under its control. On the face of the clear
provisions of the RTI Act, as they now stand,
there is no way for judicial intervention to
refuse access to information by or under the
control of PSC.
9.Be that as it may, we proceed to consider the
submissions on behalf of the PSC that the concept
of "information" in the RTI Act has to be
restricted to such information as would be
available in the realm of fundamental rights
referable to Article 19(1)(a) of the
Constitution, having regard to the views
expressed in Thalapalam I & II and S.N.College.
WPC33718/10 & con.cases -: 17 :-
Those three judgments and TREESA trace the
evolution of the concept of information, as a
necessary concomitant of the fundamental right to
freedom of expression as contained in Article 19
(1)(a) of the Constitution. Eligibility to access
information, including the entitlement to have
information for the purpose of meaningful
fulfillment of the fundamental right to freedom
of expression, is part of the core theme of those
precedents rendered making reference to the
legendary decisions of the Apex Court in State of
Rajasthan v. Raj Narain[AIR 1975 SC 865] and
S.P.Gupta v. Union of India[1981(Supp.)SCC 87].
Those precedents do not, in any manner, abridge
the ever expanding horizons of the fundamental
right to freedom of expression as enshrined in
Article 19(1)(a). Nor do those judgments act as
precedents for any proposition that the
legislatures have to restrict the concept of
"information" for the purpose of providing
access, with the aid of a statutory instrument,
in the form of the RTI Act. All that has been
said in those judgments is that the ever
WPC33718/10 & con.cases -: 18 :-
available fundamental right to information as
part of the fundamental right to freedom of
speech and expression has found statutory
recognition in the form of RTI Act, as a
successor to the Freedom of Information Act,
2002. Those decisions are not precedents laying
down any definition for the term "information"
for the purpose of the RTI Act.
10.To make a statute, including by laying down a
statutory definition, even artificial, for any
particular term used in that statue, is the
exclusive function of the legislature. If it does
so, that cannot be abridged by any situational or
explanatory reference made to the constitutional
provisions, in any precedents laid by courts.
When the legislature undertakes the process of
making a piece of statute law, it has necessarily
to be assumed that it is aware of the
interpretations given by the courts, at least the
Supreme Court and the High Courts, to the
different terms or concepts that become subject
of that legislation. When the legislature makes a
WPC33718/10 & con.cases -: 19 :-
statute, including by providing a specific
definition for a term; may be, even artificial,
deviating from the common and accepted meaning of
that particular term; it has to be taken that the
legislature has consciously, deliberately and
after due consideration, put that provision,
including the definition. Judicial determination
can thereafter be only as regards the
constitutionality of that provision.
11.In the absence of any way to challenge validity
of the provisions of the RTI Act, it is
impermissible for the PSC to contend that in the
application of that Act to it, there has to be a
restrictive understanding of the term
"information", that too, ignoring the clear
statutory provision defining the term; the
legislature clearly stating that it means what it
stated as the definition of the term
"information" for the purpose of that Act.
12.Here, the law laid by the Apex Court in
Paritosh was one expressing the confidence in the
WPC33718/10 & con.cases -: 20 :-
examination systems, holding the examiners and
the institutions conducting the examinations in a
pedestal higher than the right of the examinee or
any other person to access information in that
regard. In the absence of any permission then,
like the RTI Act, holding the field, the Apex
Court stated its views within the format of the
Constitution to say, without the aid of any
statute governing the field, that the right to
information in relation to, and disclosure of
answer scripts, may lead to request for
revaluation and resultant choking off the systems
which run the examinations. For one thing, after
Paritosh was decided in 1984, and even followed
subsequently, evolution of the thinking process
of the legislators, academicians and civil
society leaders and organizers had apparently
pushed forward the larger salutary requirement
that transparency has to outweigh all demands for
secrecy, except of course, in relation to areas
of national and other such interests which
require continued secrecy and exemption from any
law providing access to information. This
WPC33718/10 & con.cases -: 21 :-
evolution of the People's thinking found
acceptance with the Legislature. This is how the
RTI Act came into being, making a specific
provision in the form of Section 8 granting
exemptions from the provisions of the RTI Act.
We, therefore, uphold the views in TREESA and
agree with the Division Bench and the single
Judge of the Calcutta High Court in Pritam Rooj
pointing out the evolution of the society leading
to the RTI Act and the requirement of the
Universities to fall in line with the provisions
contained in that Act. The constitutional values
have to be identified and effectuated as "We, the
People of India" marches. The concepts which had
held field, even for fairly long, have later
dwinkled with the exploring minds of the Indian
people. As noted by Krishna Iyer, J. in
Authorised Officer v. S.Naganatha Ayyar[(1979) 3
SCC 466], though the Judges are constitutional
invigilators and statutory interpretors, they are
also responsive and responsible to Part IV of the
Constitution. The Judges have, with the passage
of time, contributed to the process of evolution
WPC33718/10 & con.cases -: 22 :-
of the constitutional law to ultimately lead the
society to affirmatively stand by the equality
doctrine which is a seminal principle underlying
the Constitution. To indicate an example of the
process of evolution of thinking in
Constitutional law, we may indicate the growth of
law from A.K.Gopalan v. State of Madras [AIR 1950
SC 27], through Maneka Gandhi v. Union of India
[(1978) 1 SCC 248] and Kehar Singh v. Union of
India[(1989)1 SCC 204] and now State of West
Bengal v. Committee for Protection of Democratic
Rights[(2010)3 SCC 571]; showing a graphical
expansion of the concept of right to life and
personal liberty. The progression of the society
is reflected also by the growth of statute law
and judicial precedents which reflect the
recognition of the priceless gems in the
Constitution; the fundamental rights, Directive
Principles of State Policy and other provisions
which reflect the aspirations of the Nation. They
are the constitutional values, which will run the
national mechanism in terms of the Constitution.
It is within the power of the Legislature to
WPC33718/10 & con.cases -: 23 :-
bring such legislations as are in conformity with
the Constitution. Permissiveness in terms of the
Constitution may be one matter. But, more
importantly, the People are entitled to have the
legislators to think and bring in laws as may be
necessary to effectuate the aspirations of the
people referable to the Directive Principles of
State Policy. May be, a citizen may not have a
right to a judicial order seeking enforcement of
any provision in Part IV of the Constitution.
But, that does not provide answer for legislative
failure to give effect to the aspirations of the
People in terms of Part IV of the Constitution.
It is also the law that the legislatures which
are the constitutional authorities to make the
enactments can change the course of the settled
positions of law except in exceptional
circumstances and subject to such restrictions as
have been judicially recognised. Therefore, the
law laid in Paritosh is not persuasive of any
proposition that the provisions of the RTI Act
have to be interpreted in terms of the rights of
citizens, particularly, the examinees, as laid
WPC33718/10 & con.cases -: 24 :-
down in that case. The views expressed in that
regard in TREESA and of the learned single Judge
and Division Bench of the Calcutta High Court in
Pritam Rooj are apposite.
13.For the foregoing reasons, the argument extended
by the PSC that the concept of "information" for
the purpose of the RTI Act has to be restricted
to such information as may fall within the
concept of fundamental right to information as
part of the fundamental right to freedom of
speech and expression referable to Article 19 (1)
(a), is unsustainable in law and is hereby
repelled.
14.Now, on to the plea of the PSC that it holds a
fiduciary status. Three issues arise in this
context. Firstly, the PSC claims that there is a
fiduciary relationship between it and those being
subjected to examination for the purpose of
selection to public service. Secondly, it claims
that there is a fiduciary relationship between it
and the examiners and as a consequence, it is
WPC33718/10 & con.cases -: 25 :-
eligible to claim protection from disclosure,
except with the sanction of the competent
authority, as regards the identity of the
examiners as also the materials that were
subjected to the examination. Thirdly, rather,
most importantly, it contends that the PSC holds
a larger fiduciary public interest relationship
with the society at large in relation to the
maintenance of purity, transparency and the
credibility of the procedure of selection to
public service and therefore materials in
relation to such selection procedures cannot be
subjected to access as if they were information
that would fall within the trappings of the RTI
Act. We may hasten to add that the learned
counsel for the PSC, in the course of his erudite
submissions, made a clear distinction between
information relatable to the PSC as regards its
governance and those relatable to the
examinations conducted by it. He said that in
matters relating to governance, there may not be
any privilege or protection that the PSC could
claim; but that, matters relating to examination
WPC33718/10 & con.cases -: 26 :-
deserve to be taken out of the purview of the RTI
Act.
15.In Centre of Earth Science Studies v. Anson
Sebastian[2010 (2) KLT 233], the Division Bench
of this Court held that S.8(1)(e) deals with
information available with the person in his
fiduciary relationship with another; that
information under this head is nothing but
information in trust, which, but for the
relationship would not have been conveyed or
known to the person concerned and that this
applies to the relationship that exists between a
patient and a Doctor, a lawyer and a client etc.
The term "fiduciary relationship" is not defined
in the RTI Act. The learned single Judge, in
TREESA, therefore rightly held that in the
absence of any statutory definition, the general
accepted legal connotation of that term could be
adopted for deciding the issue. Reliance placed
in TREESA on the definition of "fiduciary
relationship" as stated in Black's Law
Dictionary, seventh edition, in Corpus Juris
WPC33718/10 & con.cases -: 27 :-
Secundum, the Dictionary of Law by L.B. Curzon,
Stroud's Judicial Dictionary and the decision of
this Court in Sunitha v. Ramesh[2010 (3) KLT 501]
and the decisions in Secretary General, Supreme
Court of India(supra), including the references
made therein to different precedents and
commentaries, are contextually apposite and
applicable to the interpretation of the term
"fiduciary relationship" in section 8 (1)(e) of
the RTI Act.
16.What, if any, is the fiduciary relationship of
the PSC qua the examinees? Performance audit of
constitutional institutions would only strengthen
the confidence of the citizenry in such
institutions. The PSC is a constitutional
institution. To stand above board, is one of its
own prime requirements. There is nothing that
should deter disclosure of the contents of the
materials that the examinees provide as part of
their performance in the competition for being
selected to public service. The confidence that
may be reposed by the examinees in the
WPC33718/10 & con.cases -: 28 :-
institution of the PSC does not inspire the
acceptability of a fiduciary relationship that
should kindle the exclusion of information in
relation to the evaluation or other details
relating to the examination. Once the evaluation
is over and results are declared, no more secrecy
is called for. Dissemination of such information
would only add to the credibility of the PSC, in
the constitutional conspectus in which it is
placed. A particular examinee would therefore be
entitled to access to information in relation to
that person's answer scripts. As regards others,
information in relation to answer scripts may
fall within the pale of "third party information"
in terms of section 11 of the RTI Act. This only
means that such information cannot be accessed
except in conformity with the provisions
contained in section 11. It does not, in any
manner, provide for any immunity from access.
17.We shall now examine the next contention of PSC
that there is a fiduciary relationship between it
and the examiners and as a consequence, it is
WPC33718/10 & con.cases -: 29 :-
eligible to claim protection from disclosure,
except with the sanction of the competent
authority, as regards the identity of the
examiners as also the materials that were
subjected to the examination. We have already
approved TREESA and the different precedents and
commentaries relied on therein as regards the
concept of fiduciary relationship. We are in full
agreement with the law laid by the Division Bench
of this Court in Centre of Earth Science Studies
(supra), that S.8(1)(e) deals with information
available with the person in his fiduciary
relationship with another; that information under
this head is nothing but information in trust,
which, but for the relationship would not have
been conveyed or known to the person concerned.
What is it that the PSC holds in trust for the
examiners? Nothing. At the best, it could be
pointed out that the identity of the examiners
has to be insulated from public gaze, having
regard to issues relatable to vulnerability and
exposure to corruption if the identities of the
examiners are disclosed in advance. But, at any
WPC33718/10 & con.cases -: 30 :-
rate, such issues would go to oblivion after the
conclusion of the evaluation of the answer
scripts and the publication of the results.
Therefore, it would not be in public interest to
hold that there could be a continued secrecy even
as regards the identity of the examiners. Access
to such information, including as to the identity
of the examiners, after the examination and
evaluation processes are over, cannot be shied
off under any law or avowed principle of privacy.
18.Proceeding to the next contention of the PSC
that it holds a larger fiduciary public interest
relationship to the society at large in relation
to the maintenance of purity, transparency and
the credibility of the procedure of selection to
public service and therefore materials in
relation to such selection procedures should not
be subjected to access as if they were
information that would fall within the trappings
of the RTI Act, it needs to be stated
emphatically that purity and transparency of
every public establishment is ensured to the
WPC33718/10 & con.cases -: 31 :-
satisfaction of the citizenry only by providing
access to materials as would instil confidence.
The RTI Act is a unique legislation. A laudable
object it proceeds to achieve is empowerment of
the citizenry with information in relation to
matters of governance and also as regards all
matters which may be relevant as information in
terms of the RTI Act. This process of access is
statutorily provided by the legislature after
making clear and specific exemptions and
restrictions regarding information which it, in
its wisdom, decided not to disseminate. The
reference made to the Official Secrets Act and
the provision that the RTI Act applies with an
overriding effect on other laws makes it
explicitly clear that the legislative intention
is that no principle of secrecy other than which
is recognized specifically in the RTI Act is
taken up as a shield against access and
dessimination of information by public
authorities in terms of the RTI Act. Transparency
will only add to the confidence of the people
regarding the purity of the conduct of public
WPC33718/10 & con.cases -: 32 :-
authorities. The confidence that the public
repose on the PSC would only be augmented by the
disclosure of information. We do not find any
reason why the PSC could say that the
confidentiality in re it and the public at large
would, in any manner, be affected by the
disclosure of information in relation to
examinations and materials in connection
therewith. This argument also therefore fails.
19.Barring the eligibility of any candidate who
would be eligible to notice and hearing prior to
the disclosure of any third party information in
terms of the RTI Act, we do not find any legal
infirmity in TREESA. Except to that extent, the
contrary view in UNICAL does not lay down the
correct position of law. It is so declared.
20.An incidental issue also needs to be addressed.
In exercise of authority under the relevant
constitutional and statutory provisions, the PSC
has laid down for itself, rules relating to
destruction of its records. Having regard to the
WPC33718/10 & con.cases -: 33 :-
existence of the power to make such rules and
because those rules cannot be treated as contrary
to the provisions of the RTI Act and the objects
sought to be achieved thereby, the PSC cannot be
compelled to disclose information which it would
have destroyed in accordance with the provisions
of the rules enabling destruction of records.
Therefore, there cannot also be any penalty for
nondisclosure of information relating to
destroyed records, provided they have been
destroyed in accordance with the rules
providing and enabling destruction of records by
PSC.
21.One of the issues that arise for consideration
is the plea of the PSC that it having made rules
for issuance of copies and dissemination of
information to candidates; it ought not to be
compelled to issue such information, also under
the provisions of the RTI Act. This argument
appears to be quite appealing because public
institutions like PSC meet their expenses from
public funds. Necessarily, it has to be the
WPC33718/10 & con.cases -: 34 :-
endeavour of all concerned to ensure that
expenditure from such funds is confined to actual
requirements. At the same time, the mode and
provision for access to information under the
provisions of the rules made by the PSC, as also,
the cost factor, if any, involved, may be
relevant considerations to ultimately conclude as
to whether there could be any exclusion of access
to such information under the provisions of the
RTI Act and the rules framed thereunder, on the
premise that alternate, efficacious and
cost-friendly modes of access to information are
otherwise provided for by the statutory rules and
other provisions that govern the working of the
public authority from which, information could be
sought under the RTI Act. But, as the law now
stands, there is no scope for any judicial
recognition of such a plea and a favourable
decision on that issue through a judicial order.
This is because Section 22 of the RTI Act
provides that the provisions of that Act shall
have effect notwithstanding anything inconsistent
therewith contained in the Official Secrets Act,
WPC33718/10 & con.cases -: 35 :-
1923 (19 of 1923), and any other law for the time
being in force or in any instrument having effect
by virtue of any law other than that Act. Such
statutory provision having been made by the
legislature, within its competence, it cannot be
watered down or modified except by recourse to
legislative procedures. We therefore do not find
way to accept the contention of the PSC in this
regard.
22.Another plea of PSC is nothing but a managerial
issue. It is pointed out that the PSC has to
incur the huge expenses and administrative
difficulties, including the deployment of staff
exclusively to deal with such requests and this
would result in undue hardship and clogging of
its administrative setup. Once a piece of law is
in place, inconvenience is no excuse to exclude
adherence to it. The bounden has to obey and
abide by it. This plea of PSC also does not
commend acceptance.
WPC33718/10 & con.cases -: 36 :-
In the result, the decisions impugned by the PSC
are upheld except to the extent they relate to
information destroyed in terms of the provisions
of the rules enabling destruction of records by
PSC. The impugned orders and the orders sought to
be enforced, through a couple of writ petitions
by persons who have sought information, would
stand regulated by what is stated herein. Further
enforcement of those orders, including by
invoking the penal provisions shall be only in
strict conformity with what is stated herein. In
view of the fact that the question of
applicability of the RTI Act to PSC was being
considered in this bunch of matters, orders
imposing penalty, if any, are set aside and the
PSC will have the statutory time, to comply with
the directions of the SIC, running from today.
The writ petitions are ordered accordingly. No
costs.
Sd/-
Thottathil B.Radhakrishnan,
Judge.
Sd/-
P.S.Gopinathan,
Sha/0303 Judge.
-true copy-
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