FRAUD IN IAS/IPS EXAMINATION CONDUCTED BY UPSC(A CIVIL SERVICES REFORM MOVEMENT) : May 2012

SECTION 8 (1)(d) of RTI act,2005, and complete RTI act:-

Section 8(1)(d) in The Right To Information Act, 2005

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such iThe Right To Information Act, 200

THE RIGHT TO INFORMATION ACT, 2005

NO. 22 OF 2005 [ 15th June, 2005.]

An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

WHEREAS the Constitution of India has established democratic Republic;

AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;

NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it.

BE it enacted by Parliament in the Fifty- sixth Year of the Republic of India as follows:-

CHAPTER I

PRELIMINARY

CHAPTER I

PRELIMINARY

1. Short title, extent and commencement.-

(1) This Act may be called the Right to Information Act, 2005 .

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) The provisions of sub- section (1) of section 4, sub- sections (1) and (2) of section 5, sections 12, 13, 15, 16, 24, 27 and 28 shall come into force at once, and the remaining provisions of this Act shall come into force on the one hundred and twentieth day of its enactment.

2. Definitions.- In this Act, unless the context otherwise requires,-

(a) " appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly-

(i) by the Central Government or the Union territory administration, the Central Government;

(ii) by the State Government, the State Government;

(b) " Central Information Commission" means the Central Information Commission constituted under sub- section (1) of section 12;

(c) " Central Public Information Officer" means the Central Public Information Officer designated under sub- section (1) and includes a Central Assistant Public Information Officer designated as such under sub- section (2) of section 5;

(d) " Chief Information Commissioner" and" Information Commissioner" mean the Chief Information Commissioner and Information Commissioner appointed under sub- section (3) of section 12;

(e) " competent authority" means-

(i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State;

(ii) the Chief Justice of India in the case of the Supreme Court;

(iii) the Chief Justice of the High Court in the case of a High Court;

(iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;

(v) the administrator appointed under article 239 of the Constitution;

(f) " 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 information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

(g) " prescribed" means prescribed by rules made under this Act by the appropriate Government or the competent authority, as the case may be;

(h) " public authority" means any authority or body or institution of self- government established or constituted-

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(d) by notification issued or order made by the appropriate Government, and includes any-

(i) body owned, controlled or substantially financed;

(ii) non- Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

(i) " record" includes-

(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a document;

(d) any other material produced by a computer or any other device;

(j) " right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;

(k) " State Information Commission" means the State Information Commission constituted under sub- section (1) of section 15;

(l) " State Chief Information Commissioner" and" State Information Commissioner" mean the State Chief Information Commissioner and the State Information Commissioner appointed under sub- section (3) of section 15;

(m) " State Public Information Officer" means the State Public Information Officer designated under sub- section (1) and includes a State Assistant Public Information Officer designated as such under sub- section (2) of section 5;

(n) " third party" means a person other than the citizen making a request for information and includes a public authority. CHAPTER II RIGHT TO INFORMATION AND OBLIGATIONS OF PUBLIC AUTHORITIES CHAPTER II RIGHT TO INFORMATION AND OBLIGATIONS OF PUBLIC AUTHORITIES

3. Right to information.- Subject to the provisions of this Act, all citizens shall have the right to information.

4. Obligations of public authorities.-

(1) Every public authority shall-

(a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated;

(b) publish within one hundred and twenty days from the enactment of this Act,-

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making process, including channels of supervision and accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

(vi) a statement of the categories of documents that are held by it or under its control;

(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or authorisations granted by it;

(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;

(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers;

(xvii) such other information as may be prescribed; and thereafter update these publications every year;

(d) provide reasons for its administrative or quasi- judicial decisions to affected persons.

(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub- section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.

(3) For the purposes of sub- section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

(4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed. Explanation.- For the purposes of sub- sections (3) and (4)," disseminated" means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.

5. Designation of Public Information Officers.-

(1) Every public authority shall, within one hundred days of the enactment of this Act, designate as many officers as the Central Public Information Officers or State Public Information Officers, as the case may be, in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act.

(2) Without prejudice to the provisions of sub- section (1), every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub- divisional level or other sub- district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub- section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be: Provided that where an application for information or appeal is given to a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, a period of five days shall be added in computing the period for response specified under sub- section (1) of section 7.

(3) Every Central Public Information Officer or State Public Information Officer, as the case may be, shall deal with requests from persons seeking information and render reasonable assistance to the persons seeking such information.

(4) The Central Public Information Officer or State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties.

(5) Any officer, whose assistance has been sought under sub- section (4), shall render all assistance to the Central Public Information Officer or State Public Information Officer, as the case may be, seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be treated as a Central Public Information Officer or State Public Information Officer, as the case may be.

6. Request for obtaining information.-

(1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to-

(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;

(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her: Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.

(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

(3) Where an application is made to a public authority requesting for an information,-

(i) which is held by another public authority; or

(ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub- section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.

7. Disposal of request.-

(1) Subject to the proviso to sub- section (2) of section 5 or the proviso to sub- section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty- eight hours of the receipt of the request.

(2) If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under sub- section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.

(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving-

(a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub- section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub- section;

(b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms.

(4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Central Public Information Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection.

(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub- section (6), pay such fee as may be prescribed: Provided that the fee prescribed under sub- section (1) of section 6 and sub- sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government.

(6) Notwithstanding anything contained in sub- section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in sub- section (1).

(7) Before taking any decision under sub- section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall take into consideration the representation made by a third party under section 11.

(8) Where a request has been rejected under sub- section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request,-

(i) the reasons for such rejection;

(ii) the period within which an appeal against such rejection may be preferred; and

(iii) the particulars of the appellate authority.

(9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

8. Exemption from disclosure of information.-

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923 ) nor any of the exemptions permissible in accordance with sub- section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub- section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under secton 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.

9. Grounds for rejection to access in certain cases.- Without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.

10. Severability.-

(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.

(2) Where access is granted to a part of the record under sub- section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall give a notice to the applicant, informing-

(a) that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;

(b) the reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based;

(d) the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and

(e) his or her rights with respect to review of the decision regarding non- disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub- section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access.

11. Third party information.-

(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub- section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.

(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub- section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.

(4) A notice given under sub- section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. CHAPTER III THE CENTRAL INFORMATION COMMISSION CHAPTER III THE CENTRAL INFORMATION COMMISSION

12. Constitution of Central Information Commission.-

(1) The Central Government shall, by notification in the Official Gazette, constitute a body to be known as the Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.

(2) The Central Information Commission shall consist of-

(a) the Chief Information Commissioner; and

(b) such number of Central Information Commissioners, not exceeding ten, as may be deemed necessary.

(3) The Chief Information Commissioner and Information Commissioners shall be appointed by the President on the recommendation of a committee consisting of-

(i) the Prime Minister, who shall be the Chairperson of the committee;

(ii) the Leader of Opposition in the Lok Sabha; and

(iii) a Union Cabinet Minister to be nominated by the Prime Minister. Explanation.- For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the House of the People has not been recognised as such, the Leader of the single largest group in opposition of the Government in the House of the People shall be deemed to be the Leader of Opposition.

(4) The general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act.

(5) The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

(6) The Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.

(7) The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may, with the previous approval of the Central Government, establish offices at other places in India.

13. Term of office and conditions of service.-

(1) The Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no Chief Information Commissioner shall hold office as such after he has attained the age of sixty- five years.

(2) Every Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty- five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner: Provided that every Information Commissioner shall, on vacating his office under this sub- section be eligible for appointment as the Chief Information Commissioner in the manner specified in sub- section (3) of section 12: Provided further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner.

(3) The Chief Information Commissioner or an Information Commissioner shall before he enters upon his office make and subscribe before the President or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule.

(4) The Chief Information Commissioner or an Information Commissioner may, at any time, by writing under his hand addressed to the President, resign from his office: Provided that the Chief Information Commissioner or an Information Commissioner may be removed in the manner specified under section 14.

(5) The salaries and allowances payable to and other terms and conditions of service of-

(a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner;

(b) an Information Commissioner shall be the same as that of an Election Commissioner: Provided that if the Chief Information Commissioner or an Information Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that if the Chief Information Commissioner or an Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the Chief Information Commissioner and the Information Commissioners shall not be varied to their disadvantage after their appointment.

(6) The Central Government shall provide the Chief Information Commissioner and the Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.

14. Removal of Chief Information Commissioner or Information Commissioner.-

(1) Subject to the provisions of sub- section (3), the Chief Information Commissioner or any Information Commissioner shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Chief Information Commissioner or any Information Commissioner, as the case may be, ought on such ground be removed.

(2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Chief Information Commissioner or Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub- section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.

(3) Notwithstanding anything contained in sub- section (1), the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be,-

(a) is adjudged an insolvent; or

(b) has been convicted of an offence which, in the opinion of the President, involves moral turpitude; or

(d) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or

(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chief Information Commissioner or a Information Commissioner.

(4) If the Chief Information Commissioner or a Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub- section (1), be deemed to be guilty of misbehaviour. CHAPTER IV THE STATE INFORMATION COMMISSION CHAPTER IV THE STATE INFORMATION COMMISSION

15. Constitution of State Information Commission.-

(1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the......... (name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.

(2) The State Information Commission shall consist of-

(a) the State Chief Information Commissioner, and

(b) such number of State Information Commissioners, not exceeding ten, as may be deemed necessary.

(3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of-

(i) the Chief Minister, who shall be the Chairperson of the committee;

(ii) the Leader of Opposition in the Legislative Assembly; and

(iii) a Cabinet Minister to be nominated by the Chief Minister. Explanation.- For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been recognised as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of Opposition.

(4) The general superintendence, direction and management of the affairs of the State Information Commission shall vest in the State Chief Information Commissioner who shall be assisted by the State Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Information Commission autonomously without being subjected to directions by any other authority under this Act.

(5) The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

(6) The State Chief Information Commissioner or a State Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.

(7) The headquarters of the State Information Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State Information Commission may, with the previous approval of the State Government, establish offices at other places in the State.

16. Term of office and conditions of service.-

(1) The State Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no State Chief Information Commissioner shall hold office as such after he has attained the age of sixty- five years.

(2) Every State Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty- five years, whichever is earlier, and shall not be eligible for reappointment as such State Information Commissioner: Provided that every State Information Commissioner shall, on vacating his office under this sub- section, be eligible for appointment as the State Chief Information Commissioner in the manner specified in sub- section (3) of section 15: Provided further that where the State Information Commissioner is appointed as the State Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the State Information Commissioner and the State Chief Information Commissioner.

(3) The State Chief Information Commissioner or a State Information Commissioner, shall before he enters upon his office make and subscribe before the Governor or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule.

(4) The State Chief Information Commissioner or a State Information Commissioner may, at any time, by writing under his hand addressed to the Governor, resign from his office: Provided that the State Chief Information Commissioner or a State Information Commissioner may be removed in the manner specified under section 17.

(5) The salaries and allowances payable to and other terms and conditions of service of-

(a) the State Chief Information Commissioner shall be the same as that of an Election Commissioner;

(b) the State Information Commissioner shall be the same as that of the Chief Secretary to the State Government: Provided that if the State Chief Information Commissioner or a State Information Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the State Chief Information Commissioner or a State Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that where the State Chief Information Commissioner or a State Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the State Chief Information Commissioner or the State Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the State Chief Information Commissioner and the State Information Commissioners shall not be varied to their disadvantage after their appointment.

(6) The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.

17. Removal of State Chief Information Commissioner or State Information Commissioner.-

(1) Subject to the provisions of sub- section (3), the State Chief Information Commissioner or a State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed.

(2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Information Commissioner or a State Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub- section (1) until the Governor has passed orders on receipt of the report of the Supreme Court on such reference.

(3) Notwithstanding anything contained in sub- section (1), the Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if a State Chief Information Commissioner or a State Information Commissioner, as the case may be,-

(a) is adjudged an insolvent; or

(b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or

(d) is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body; or

(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Information Commissioner or a State Information Commissioner.

(4) If the State Chief Information Commissioner or a State Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub- section (1), be deemed to be guilty of misbehaviour. CHAPTER V POWERS AND FUNCTIONS OF THE INFORMATION COMMISSIONS, APPEAL AND PENALTIES CHAPTER V POWERS AND FUNCTIONS OF THE INFORMATION COMMISSIONS, APPEAL AND PENALTIES

18. Powers and functions of Information Commissions.-

(1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,-

(a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub- section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;

(b) who has been refused access to any information requested under this Act;

(c) who has not been given a response to a request for information or access to information within the time limit specified under this Act;

(d) who has been required to pay an amount of fee which he or she considers unreasonable;

(e) who believes that he or she has been given incomplete, misleading or false information under this Act; and

(f) in respect of any other matter relating to requesting or obtaining access to records under this Act.

(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.

(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908 ), in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;

(b) requiring the discovery and inspection of documents;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing summons for examination of witnesses or documents; and

(f) any other matter which may be prescribed.

(4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.

19. Appeal.-

(1) Any person who, does not receive a decision within the time specified in sub- section (1) or clause (a) of sub- section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.

(3) A second appeal against the decision under sub- section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.

(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.

(6) An appeal under sub- section (1) or sub- section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty- five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.

(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.

(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to-

(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including-

(i) by providing access to information, if so requested, in a particular form;

(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;

(iii) by publishing certain information or categories of information;

(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;

(v) by enhancing the provision of training on the right to information for its officials;

(vi) by providing it with an annual report in compliance with clause (b) of sub- section (1) of section 4;

(b) require the public authority to compensate the complainant for any loss or other detriment suffered;

(d) reject the application.

(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.

(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.

20. Penalties.-

(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub- section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty- five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.

(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub- section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him. CHAPTER VI MISCELLANEOUS CHAPTER VI MISCELLANEOUS

21. Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made thereunder.

22. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 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 this Act.

23. Bar of judisdiction of courts.- No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.

24. Act not to apply in certain organizations.-

(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub- section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty- five days from the date of the receipt of request.

(2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organisation established by that Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation shall be deemed to be included in or, as the case may be, omitted from the Schedule.

(3) Every notification issued under sub- section (2) shall be laid before each House of Parliament.

(4) Nothing contained in this Act shall apply to such intelligence and security organisation being organisations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub- section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the State Information Commission and, notwithstanding anything contained in section 7, such information shall be provided within forty- five days from the date of the receipt of request.

(5) Every notification issued under sub- section (4) shall be laid before the State Legislature.

25. Monitoring and reporting.-

(1) The Central Information Commission or State Information Commission, as the case may be, shall, as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of this Act during that year and forward a copy thereof to the appropriate Government.

(2) Each Ministry or Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the Central Information Commission or State Information Commission, as the case may be, as is required to prepare the report under this section and comply with the requirements concerning the furnishing of that information and keeping of records for the purposes of this section.

(3) Each report shall state in respect of the year to which the report relates,-

(a) the number of requests made to each public authority;

(b) the number of decisions where applicants were not entitled to access to the documents pursuant to the requests, the provisions of this Act under which these decisions were made and the number of times such provisions were invoked;

(c) the number of appeals referred to the Central Information Commission or State Information Commission, as the case may be, for review, the nature of the appeals and the outcome of the appeals;

(d) particulars of any disciplinary action taken against any officer in respect of the administration of this Act;

(e) the amount of charges collected by each public authority under this Act;

(f) any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of this Act;

(g) recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment to this Act or other legislation or common law or any other matter relevant for operationalising the right to access information.

(4) The Central Government or the State Government, as the case may be, may, as soon as practicable after the end of each year, cause a copy of the report of the Central Information Commission or the State Information Commission, as the case may be, referred to in sub- section (1) to be laid before each House of Parliament or, as the case may be, before each House of the State Legislature, where there are two Houses, and where there is one House of the State Legislature before that House.

(5) If it appears to the Central Information Commission or State Information Commission, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity.

26. Appropriate Government to prepare programmes.-

(1) The appropriate Government may, to the extent of availability of financial and other resources,-

(a) develop and organise educational programmes to advance the understanding of the public, in particular of disadvantaged communities as to how to exercise the rights contemplated under this Act;

(b) encourage public authorities to participate in the development and organisation of programmes referred to in clause (a) and to undertake such programmes themselves;

(d) train Central Public Information Officers or State Public Information Officers, as the case may be, of public authorities and produce relevant training materials for use by the public authorities themselves.

(2) The appropriate Government shall, within eighteen months from the commencement of this Act, compile in its official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right specified in this Act.

(3) The appropriate Government shall, if necessary, update and publish the guidelines referred to in sub- section (2) at regular intervals which shall, in particular and without prejudice to the generality of sub- section (2), include-

(a) the objects of this Act;

(b) the postal and street address, the phone and fax number and, if available, electronic mail address of the Central Public Information Officer or State Public Information Officer, as the case may be, of every public authority appointed under sub- section (1) of section 5;

(c) the manner and the form in which request for access to an information shall be made to a Central Public Information Officer or State Public Information Officer, as the case may be;

(d) the assistance available from and the duties of the Central Public Information Officer or State Public Information Officer, as the case may be, of a public authority under this Act;

(e) the assistance available from the Central Information Commission or State Information Commission, as the case may be;

(f) all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act including the manner of filing an appeal to the Commission;

(g) the provisions providing for the voluntary disclosure of categories of records in accordance with section 4;

(h) the notices regarding fees to be paid in relation to requests for access to an information; and

(i) any additional regulations or circulars made or issued in relation to obtaining access to an information in accordance with this Act.

(4) The appropriate Government must, if necessary, update and publish the guidelines at regular intervals.

27. Power to make rules by appropriate Government.-

(1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the cost of the medium or print cost price of the materials to be disseminated under sub- section (4) of section 4;

(b) the fee payable under sub- section (1) of section 6;

(d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub- section (6) of section 13 and sub- section (6) of section 16;

(e) the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub- section (10) of section 19; and

(f) any other matter which is required to be, or may be, prescribed.

28. Power to make rules by competent authority.-

(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(i) the cost of the medium or print cost price of the materials to be disseminated under sub- section (4) of section 4;

(ii) the fee payable under sub- section (1) of section 6;

(iii) the fee payable under sub- section (1) of section 7; and

(iv) any other matter which is required to be, or may be, prescribed.

29. Laying of rules.-

(1) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

(2) Every rule made under this Act by a State Government shall be laid, as soon as may be after it is notified, before the State Legislature.

30. Power to remove difficulties.-

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removal of the difficulty: Provided that no such order shall be made after the expiry of a period of two years from the date of the commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

31. Repeal.- The Freedom of Information Act, 2002 (5 of 2003 ) is hereby repealed. THE FIRST SCHEDULE FORM OF OATH OR AFFIRMATION TO BE MADE BY THE CHIEF INFORMATION COMMISSIONER THE INFORMATION COMMISSIONER THE STATE CHIEF INFORMATION COMMISSIONER THE STATE INFORMATION COMMISSIONER THE FIRST SCHEDULE [ See sections 13 (3) and 16 (3)] FORM OF OATH OR AFFIRMATION TO BE MADE BY THE CHIEF INFORMATION COMMISSIONER THE INFORMATION COMMISSIONER THE STATE CHIEF INFORMATION COMMISSIONER THE STATE INFORMATION COMMISSIONER" I,....................., having been appointed Chief Information Commissioner Information Commissioner State Chief Information Commissioner State Information Commissioner swear in the name of God that I will bear true faith and allegiance to the solemnly affirm Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill- will and that I will uphold the Constitution and the laws.". THE SECOND SCHEDULE INTELLIGENCE AND SECURITY ORGANISATION ESTABLISHED BY THE CENTRAL GOVERNMENT THE SECOND SCHEDULE (See section 24) INTELLIGENCE AND SECURITY ORGANISATION ESTABLISHED BY THE CENTRAL GOVERNMENT

1. Intelligence Bureau.

2. Research and Analysis Wing of the Cabinet Secretariat.

3. Directorate of Revenue Intelligence.

4. Central Economic Intelligence Bureau.

5. Directorate of Enforcement.

6. Narcotics Control Bureau.

7. Aviation Research Centre.

8. Special Prontier Force.

9. Border Security Force.

10. Central Reserve Police Force.

11. Indo- Tibetan Border Police.

12. Central Industrial Security Force.

13. National Security Guards.

14. Assam Rifles.

15. Special Service Bureau

16. Special Branch (CID), Andaman and Nicobar.

17. The Crime Branch- C. I. D.- CB, Dadra and Nagar Haveli.

18. Special Branch, Lakshadweep Police. T. K. VISWANATHAN, Secy. to the Govt. of India. nformation;

ICAI vs shaunak satya SLP(C) 2040/2011:-

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7571 OF 2011

[Arising out of SLP (C) No.2040/2011]

The Institute of Chartered Accountants of India … Appellant

Vs.

Shaunak H.Satya & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN,J.

Leave granted.

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 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 with the provisions of the Chartered Accountants

1

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 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 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.

4) Procedure established for selection of examiners & moderators.

5) Model answers if any given to the examiners & 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 up)

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.

PE1/PE2/PCC/CPE/Final with break up) from the above, how many

students opted for verification of marks as per regulation 38.

10) Procedure adopted at the time of verification of marks as above.

11) Number of students whose marks were positively changed out of those

students that opted for verification of marks.

12) Educational qualifications of the persons performing the verification

of marks under Regulation 38 & remuneration paid to them.

13) Number of times that the council has revised the marks of any

candidate, or any class of candidates, in accordance with regulation

2

39(2) of the Chartered Accountants Regulations, 1988, the criteria

used for such discretion, the quantum of such revision, the quantum

of such revision, the authority that decides such discretion, and the

number of students along with the quantum of revision affected by

such revision in the last 5 exams, held at all levels (i.e.

PE1/PE2/PCC/CPE/Final with break up).”

(emphasis supplied)

4. The appellant by its reply dated 22.2.2008 gave the following

responses/information in response to the 13 queries :

“1. Professionals, academicians and officials with relevant academic and

practical experience and exposure in relevant and related fields.

2&3. Evaluation of answer books is carried out in terms of the

guidance including instructions provided by Head Examiners

appointed for each subject(s). Subsequently, a review thereof is

undertaken for the purpose of moderators.

4. In terms of (1) above, a list of examiners is maintained under

Regulation 42 of the Chartered Accountants Regulations, 1988. Based on

the performance of the examiners, moderators are appointed from amongst

the examiners.

5. Solutions are given in confidence of examiners for the purpose of

evaluation. Services of moderators are utilized in our context for

paper setting.

6. Rs.50/- per answer book is paid to the examiner while Rs.10,000/- is

paid to the moderator for each paper.

7. The number of students who appeared in the last two years is as follow:

Month &

Year

Number of students Appeared

PE-I PE-II PCC CPE* FINAL

Nov.,2005 16228 47522 Not held Not held 28367

May,2006 32215 49505 Not held Not held 26254

Nov.,2006 16089 49220 Not held 27629 24704

May,2007 6194 56624 51 42910 23490

*CPE is read as Common Proficiency Test (CPT).

3

8. Since such a data is not compiled, it is regretted that the number of

students who passed Final Examination at the 1st attempt cannot be made

available.

9. The number of students who applied for the verification of answer

books is as follows:-

Month &

Year

Number of students who applied for verification from

among the failed candidates*

PE-I PE-II PCC CPE FINAL

Nov.,2005 598 4150 Not held Not held 4432

May,2006 1607 4581 Not held Not held 4070

Nov.,2006 576 4894 Not held 205 3352

May,2007 204 5813 07 431 3310

* This figure may contain some pass candidates also.

10. Each request for verification is processed in accordance with

Regulation 39(4) of the Chartered Accountants Regulation, 1988

through well laid down scientific and meticulous procedure and a

comprehensive checking is done before arriving at any conclusion.

The process of verification starts after declaration of result and each

request is processed on first come first served basis. The verification of

the answer books, as requested, is done by two independent persons

separately and then, reviewed by an Officer of the Institute and upon

his satisfaction, the letter informing the outcome of the verification

exercise is issued after the comprehensive check has been

satisfactorily completed.

11. The number of students who were declared passed consequent to

the verification of answer books is as given below:-

Month &

Year

Number of students who applied for verification from

among the failed candidates*

PE-I PE-II PCC CPE FINAL

Nov.,2005 14 40 Not held Not held 37

May,2006 24 86 Not held Not held 30

Nov.,2006 07 61 Not held 02 35

May,2007 03 56 Nil Nil 27

* This figure may contain some pass candidates also.

12. Independent persons such as retired Govt. teachers/Officers are

assigned the task of verification of answer books work. A token

4

honorarium of Rs.6/- per candidate besides lump sum daily conveyance

allowance is paid.

13. The Examination Committee in terms of Regulation 39(2) has the

authority to revise the marks based on the findings of the Head

Examiners and incidental information in the knowledge of the

Examination Committee, in its best wisdom. Since the details

sought are highly confidential in nature and there is no larger

public interest warrants disclosure, the same is denied under

Section 8(1)(e) of the Right to Information Act, 2005.”

(emphasis supplied)

5. Not being satisfied with the same, the respondent filed an appeal

before the appellate authority. The appellate authority dismissed the appeal,

by order dated 10.4.2008, 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 (for short ‘CIC’)

in regard to queries (1) to (5) and (7) to (13). CIC by order dated 23.12.2008

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. We

extract below the reasoning given by the CIC to refuse disclosure in regard

to queries 3,5 and 13.

“Re: Query No.3.

Decision:

This request of the Appellant cannot be without seriously and perhaps

irretrievably compromising the entire examination process. An instruction

issued by a public authority – in this case, examination conducting

authority – to its examiners is strictly confidential. There is an implied

contract between the examiners and the examination conducting public

5

authority. It would be inappropriate to disclose this information. This item

of information too, like the previous one, attracts section 8(1)(d) being the

intellectual property of the public authority having being developed

through careful empirical and intellectual study and analysis over the

years. I, therefore, hold that this item of query attracts exemption under

section 8(1)(e) as well as section 8(1)(d) of the RTI Act.

Re : Query No.5.

Decision:

Respondents have explained that what they provide to the examiners is

“solutions” and not “model answers” as assumed by the appellant. For the

aid of the students and examinees, “suggested answers” to the questions in

an exam are brought out and sold in the market.

It would be wholly inappropriate to provide to the students the solutions

given to the questions only for the exclusive use of the examiners and

moderators. Given the confidentiality of interaction between the public

authority holding the examinations and the examiners, the “solutions”

qualifies to be items barred by section 8(1)(e) of the RTI Act. This item of

information also attracts section 8(1)(d) being the exclusive intellectual

property of the public authority. Respondents have rightly advised the

appellant to secure the “suggested answers” to the questions from the open

market, where these are available for sale.

Re : Query No.13.

Decision:

I find no infirmity in the reply furnished to the appellant. It is a categorical

statement and must be accepted as such. Appellant seems to have certain

presumptions and assumptions about what these replies should be.

Respondents are not obliged to cater to that. It is therefore held that there

shall be no further disclosure of information as regards this item of

query.”

6. Feeling aggrieved by the rejection of information sought under items

3, 5 and 13, the first respondent approached the Bombay High Court by

filing a writ petition. The High Court allowed the said petition by order

6

dated 30.11.2010 and directed the appellant to supply the information in

regard to queries 3, 5 and 13, on the following reasoning :

“According to the Central Information Commission the solutions which

have been supplied by the Board to the examiners are given in confidence

and therefore, they are entitled to protection under Section 8(1)(e) of the

RTI Act. Section 8(1)(e) does not protect confidential information and the

claim of intellectual property has not made by the respondent No.2

anywhere. In the reply it is suggested that the suggested answers are

published and sold in open market by the Board. Therefore, there can be

no confidentiality about suggested answers. It is no where explained what

is the difference between the suggested answers and the solutions. In our

opinion, the orders of both Authorities in this respect also suffer from nonapplication

of mind and therefore they are liable to be set aside. We find

that the right given under the Right to Information Act has been dealt with

by the Authorities under that Act in most casual manner without properly

applying their minds to the material on record. In our opinion, therefore,

information sought against queries Nos.3,5 and 13 could not have been

denied by the Authorities to the petitioner. The principal defence of the

respondent No.2 is that the information is confidential. Till the result of

the examination is declared, the information sought by the petitioner has to

be treated as confidential, but once the result is declared, in our opinion,

that information cannot be treated as confidential. We were not shown

anything which would even indicate that it is necessary to keep the

information in relation to the examination which is over and the result is

also declared as confidential.”

7. The said order of the High Court is challenged in this appeal by

special leave. The appellant submitted that it conducts the following

examinations: (i) the common proficiency test; (ii) professional education

examination-II (till May 2010); (iii) professional competence examination;

(iv) integrated professional competence examination; (v) final examination;

and (vi) post qualification course examinations. A person is enrolled as a

Chartered Accountant only after passing the common proficiency test,

7

professional educational examination-II/professional competence

examination and final examination. The number of candidates who applied

for various examinations conducted by ICAI were 2.03 lakhs in 2006, 4.16

lakhs in 2007; 3.97 lakh candidates in 2008 and 4.20 lakhs candidates in

2009. ICAI conducts the examinations in about 343 centres spread over 147

cities throughout the country and abroad. The appellant claims to follow the

following elaborate system with established procedures in connection with

its examinations, taking utmost care with regard to valuation of answer

sheets and preparation of results and also in carrying out verification in case

a student applies for the same in accordance with the following Regulations:

“Chartered Accountants with a standing of minimum of 5-7 years in the

profession or teachers with a minimum experience of 5-7 years in

university education system are empanelled as examiners of the Institute.

The eligibility criteria to be empanelled as examiner for the examinations

held in November, 2010 was that a chartered accountant with a minimum

of 3 years’ standing, if in practice, or with a minimum of 10 yeas standing,

if in service and University lecturers with a minimum of 5 years’ teaching

experience at graduate/post graduate level in the relevant subjects with

examiner ship experience of 5 years. The said criteria is continued to be

followed. The bio-data of such persons who wish to be empanelled are

scrutinized by the Director of Studies of the Institute in the first instance.

Thereafter, Examination Committee considers each such application and

takes a decision thereon. The examiners, based on their performance and

experience with the system of the ICAI, are invited to take up other

assignments of preparation of question paper, suggested solution, marking

scheme, etc. and also appointed as Head Examiners to supervise the

evaluation carried out by the different examiners in a particular subject

from time to time.

A question paper and its solution are finalized by different experts in the

concerned subject at 3 stages. In addition, the solution is also vetted by

Director of Studies of the Institute after the examination is held and before

the evaluation of the answer sheets are carried out by examiners. All

8

possible alternate solutions to a particular question as intimated by

different examiners in a subject are also included in the solution. Each

examiner in a particular subject is issued detailed instructions on marking

scheme by the Head Examiners and general guidelines for evaluation

issued by the ICAI. In addition, performance of each examiner, to

ascertain whether the said examiner has complied with the instructions

issued as also the general guidelines of the Institute, is assessed by the

Head Examiner at two stages before the declaration of result. The said

process has been evolved based on the experience gained in the last 60

years of conducting examinations and to ensure all possible uniformity in

evaluation of answer sheets carried out by numerous examiners in a

particular subject and to provide justice to the candidates.

The examination process/procedure/systems of the ICAI are well in place

and have been evolved over several decades out of experience gained. The

said process/procedure/systems have adequate checks to ensure fair results

and also ensure that due justice is done to each candidate and no candidate

ever suffers on any count.”

8. The appellant contends that the information sought as per queries (3)

and (5) - that is, instructions and model answers, if any, issued to the

examiners and moderators by ICAI cannot be disclosed as they are exempted

from disclosure under clauses (d) and (e) of sub-section (1) of Section 8 of

RTI Act. It is submitted that the request for information is also liable to be

rejected under section 9 of the Act. They also contended that in regard to

query No.(13), whatever information available had been furnished, apart

from generally invoking section 8(1)(e) to claim exemption.

9. On the said contentions, the following questions arise for our

consideration:

9

(i) Whether the instructions 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 competitive 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 the appellant to

furnish to the first respondent five items of information sought (in query

No.13) relating to Regulation 39(2) of Chartered Accountants Regulations,

1988?

Re: Question (i)

10. The term ‘intellectual property’ refers to a category 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 against unfair

10

competition (vide Black’s Law Dictionary, 7th Edition, page 813). Question

papers, instructions regarding evaluation and solutions to questions (or

model answers) which are furnished to examiners and moderators in

connection with evaluation of answer scripts, are literary works which are

products of human 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. We extract below the relevant

standard communication sent by ICAI in that behalf:

“The Council is anxious to prevent the unauthorized circulation of

Question Papers set for the Chartered Accountants Examinations as well

as the solutions thereto. With that object in view, the Council proposes to

reserve all copy-rights in the question papers as well as solutions. In order

to enable the Council to retain the copy-rights, it has been suggested that it

would be advisable to obtain a specific assignment of any copy-rights or

rights of publication that you may be deemed to possess in the questions

set by you for the Chartered Accountants Examinations and the solutions

thereto in favour of the Council. I have no doubt that you will appreciate

that this is merely a formality to obviate any misconception likely to arise

later on.”

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 copyright vests in ICAI. Consequently, the question papers,

solutions to questions and instructions are the intellectual properties of ICAI.

11

The appellant contended that if the question papers, instructions or solutions

to questions/model answers are disclosed before the examination is held, it

would harm the competitive position of all other candidates who participate

in the examination and therefore the exemption under section 8(1)(d) is

squarely attracted.

11. The first respondent does not dispute that the appellant is entitled to

claim a copyright in regard to the question papers, solutions/model answers,

instructions relating to evaluation and therefore the said material constitute

intellectual property of the appellant. But he contends that the exemption

under section 8(1)(d) will not be available if the information is merely an

intellectual property. The exemption under section 8(1)(d) is available only

in regard to such intellectual property, the disclosure of which would harm

the competitive position of any third party. It was submitted that the

appellant has not been able to demonstrate that the disclosure of the said

intellectual property (instructions and solutions/model answers) would harm

the competitive position of any third party.

12. Information can be sought under the RTI Act at 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

12

nature of exemption. For example, any information which is exempted from

disclosure under section 8, is 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 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 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 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 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. The appellant

13

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 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 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. We

therefore reject the contention of the appellant that if an information is

exempt at any given point of time, it continues to be exempt for all time to

come.

Re : Question (ii)

13. 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 information would involve an infringement of copyright

subsisting in a person other than the State. The word ‘State’ used in 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 word ‘State’ and not

‘public authority’ in section 9 of RTI Act is apparently because the

14

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 provided by the appropriate

government. Be that as it may. 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 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 that even if the question papers,

solutions/model answers, or other 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 is not entitled to claim protection against

disclosure under section 9 of the RTI Act.

14. There is yet another reason why section 9 of RTI Act will be

inapplicable. The words ‘infringement of copyright’ have a specific

connotation. Section 51 of the Copyright Act, 1957 provides when a

15

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 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. Be that as it may.

Re : Question (iii)

15. We will now consider the third contention of ICAI that the

information sought being an information available to a person in his

fiduciary relationship, is exempted under section 8(1)(e) of the RTI Act.

This Court in Central Board of Secondary Education & Anr. v. Aditya

Bandopadhyay & Ors. [2011 (8) SCALE 645] considered the meaning of the

words information available to a person in his fiduciary capacity and

observed thus:

“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 –

a trustee with reference to the beneficiary of the trust, a guardian with

reference to a minor/physically/infirm/mentally challenged, a parent with

reference to a child, a lawyer or a chartered accountant with reference to a

client, a doctor or nurse with reference to a patient, an agent with

reference to a principal, a partner with reference to another partner, a

director of a company with reference to a share-holder, an executor with

reference to a legatee, a receiver with reference to the parties to a lis, an

employer with reference to the confidential information relating to the

16

employee, and an employee with reference to business

dealings/transaction of the employer.”

16. The instructions and ‘solutions to questions’ issued to the examiners

and moderators in connection with evaluation of answer scripts, as noticed

above, 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 manner, to achieve uniformity

and consistency in evaluation, as a large number of evaluators and

moderators are engaged by ICAI in connection with the evaluation. The

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 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 scripts. When anything is given and taken in trust

or in confidence, requiring or expecting secrecy and confidentiality to be

17

maintained in that behalf, it is held by the recipient in a fiduciary

relationship.

17. It should be noted that section 8(1)(e) uses the words “information

available to a person in his fiduciary relationship. 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’ 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 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 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.

18

18. 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 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

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 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 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 important public interests including efficient functioning of the

governments and public authorities, optimum use of limited fiscal resources,

19

preservation of confidentiality of sensitive information, etc. are to be ignored

or sacrificed. The object of RTI Act is to harmonize the 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, 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 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 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 of attaining transparency of

information and safeguarding the other public interests.

20

19. 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), (f), (g) and (h) carry absolute exemption. Information

enumerated in clauses (d), (e) and (j) 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 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, 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. It is needless

to say that the competent authority will have to record reasons for holding

that an exempted information should be disclosed in larger public interest.

20. 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 High Court fell into an

21

error in holding that the information sought under queries (3) and (5) was

not exempted.

Re : Question (iv)

21. 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 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.

22. 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 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 scripts where a large number of

examiners are engaged to evaluate a large number of answer scripts. This

22

Court explained the standard process of moderation in Sanjay Singh v. U.P.

Public Service Commission - 2007 (3) SCC 720 thus:

“When a large number of candidates appear for an examination, it is

necessary to have uniformity and consistency in valuation of the answerscripts.

Where the number of candidates taking the examination are

limited and only one examiner (preferably the paper-setter himself)

evaluates the answer-scripts, it is to be assumed that there will be

uniformity in the valuation. But where a large number of candidates take

the examination, it will not be possible to get all the answer-scripts

evaluated by the same examiner. It, therefore, becomes necessary to

distribute the answer-scripts among several examiners for valuation with

the paper-setter (or other senior person) acting as the Head Examiner.

When more than one examiner evaluate the answer-scripts relating to a

subject, the subjectivity of the respective examiner will creep into the

marks awarded by him to the answer- scripts allotted to him for valuation.

Each examiner will apply his own yardstick to assess the answer-scripts.

Inevitably therefore, even when experienced examiners receive equal

batches of answer scripts, there is difference in average marks and the

range of marks awarded, thereby affecting the merit of individual

candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are

liberal in valuation and tend to award more marks. Some examiners are

strict and tend to give less marks. Some may be moderate and balanced in

awarding marks. Even among those who are liberal or those who are strict,

there may be variance in the degree of strictness or liberality. This means

that if the same answer-script is given to different examiners, there is all

likelihood of different marks being assigned. If a very well written

answer-script goes to a strict examiner and a mediocre answer-script goes

to a liberal examiner, the mediocre answer-script may be awarded more

marks than the excellent answer-script. In other words, there is 'reduced

valuation' by a strict examiner and 'enhanced valuation' by a liberal

examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'.

Therefore, there is a need to evolve a procedure to ensure uniformity inter

se the Examiners so that the effect of 'examiner subjectivity' or 'examiner

variability' is minimised. The procedure adopted to reduce examiner

subjectivity or variability is known as moderation. The classic method of

moderation is as follows:

xxx xxx xxx

(ii) To achieve uniformity in valuation, where more than one examiner is

involved, a meeting of the Head Examiner with all the examiners is held

soon after the examination. They discuss thoroughly the question paper,

the possible answers and the weightage to be given to various aspects of

23

the answers. They also carry out a sample valuation in the light of their

discussions. The sample valuation of scripts by each of them is reviewed

by the Head Examiner and variations in assigning marks are further

discussed. After such discussions, a consensus is arrived at in regard to the

norms of valuation to be adopted. On that basis, the examiners are

required to complete the valuation of answer scripts. But this by itself,

does not bring about uniformity of assessment inter se the examiners. In

spite of the norms agreed, many examiners tend to deviate from the

expected or agreed norms, as their caution is overtaken by their propensity

for strictness or liberality or eroticism or carelessness during the course of

valuation. Therefore, certain further corrective steps become necessary.

(iii) After the valuation is completed by the examiners, the Head Examiner

conducts a random sample survey of the corrected answer scripts to verify

whether the norms evolved in the meetings of examiner have actually been

followed by the examiners………..

(iv) After ascertaining or assessing the standards adopted by each

examiner, the Head Examiner may confirm the award of marks without

any change if the examiner has followed the agreed norms, or suggest

upward or downward moderation, the quantum of moderation varying

according to the degree of liberality or strictness in marking. In regard to

the top level answer books revalued by the Head Examiner, his award of

marks is accepted as final. As regards the other answer books below the

top level, to achieve maximum measure of uniformity inter se the

examiners, the awards are moderated as per the recommendations made by

the Head Examiner.

(v) If in the opinion of the Head Examiner there has been erratic or

careless marking by any examiner, for which it is not feasible to have any

standard moderation, the answer scripts valued by such examiner are

revalued either by the Head Examiner or any other Examiner who is found

to have followed the agreed norms.

(vi) Where the number of candidates is very large and the examiners are

numerous, it may be difficult for one Head Examiner to assess the work of

all the Examiners. In such a situation, one more level of Examiners is

introduced. For every ten or twenty examiners, there will be a Head

Examiner who checks the random samples as above. The work of the

Head Examiners, in turn, is checked by a Chief Examiner to ensure proper

results.

The above procedure of 'moderation' would bring in considerable

uniformity and consistency. It should be noted that absolute uniformity or

consistency in valuation is impossible to achieve where there are several

examiners and the effort is only to achieve maximum uniformity.”

24

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. 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).

23. 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 knowledge. This answers part (iv) of

query (13) as to the authority which decides the exercise of the discretion to

make the revision under Regulation 39(2).

24. In regard to parts (i), (iii) and (v) of query (13), ICAI submits that

such data is not maintained. Reliance is placed upon the following

observations of this Court in Aditya Bandopadhyay:

“The RTI Act provides access to all information that is available and

existing. This is clear from a 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

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

25

collect or collate such non-available information and then furnish it to an

applicant.”

As the information sought under parts (i), (iii) and (v) 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.

General submissions of ICAI

25. The learned counsel of ICAI submitted that there are several hundred

examining bodies in the country. With the aspirations of young citizens to

secure seats in institutions of higher learning or to qualify for certain

professions or to secure jobs, more and more persons participate in more and

more examinations. It is quite common for an examining body to conduct

examinations for lakhs of candidates that too more than once per year.

Conducting examinations involving preparing the question papers,

conducting the examinations at various centres all over the country, getting

the answer scripts evaluated and declaring results, is an immense task for

examining bodies, to be completed within fixed time schedules. If the

examining bodies are required to frequently furnish various kinds of

information as sought in this case to several applicants, it will add an

enormous work load and their existing staff will not be able to cope up with

26

the additional work involved in furnishing information under the RTI Act. It

was submitted by ICAI that it conducts several examinations every year

where more than four lakhs candidates participate; that out of them, about

15-16% are successful, which means that more than three and half lakhs of

candidates are unsuccessful; that if even one percent at those unsuccessful

candidates feel dissatisfied with the results and seek all types of unrelated

information, the working of ICAI will come to a standstill. It was submitted

that for every meaningful user of RTI Act, there are several abusers who will

attempt to disrupt the functioning of the examining bodies by seeking huge

quantity of information. ICAI submits that the application by the first

respondent is a classic case of improper use of the Act, where a candidate

who has failed in an examination and who does not even choose to take the

subsequent examination has been engaging ICAI in a prolonged litigation by

seeking a bundle of information none of which is relevant to decide whether

his answer script was properly evaluated, nor have any bearing on

accountability or reducing corruption. ICAI submits that there should be an

effective control and screening of applications for information by the

competent authorities under the Act. We do not agree that first respondent

had indulged in improper use of RTI Act. His application is intended to

bring about transparency and accountability in the functioning of ICAI. How

27

far he 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 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 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 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 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 consideration so

that any changes to the Act can be deliberated upon. Be that as it may.

26. We however agree that it is necessary to make a distinction in regard

to information intended to bring transparency, to improve accountability and

28

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 achieving transparency, the demand

for 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.

27. In view of the above, this appeal is allowed in part and 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): ICAI to disclose to the first respondent,

the standard criteria, if any, relating to moderation, employed by it, for the

purpose of making revisions under Regulation 39(2).

.………………………J.

(R V Raveendran)

New Delhi; ……………………….J.

September 2, 2011. (A K Patnaik)

29

CBSE vs KATHPAL:-- { Dear Friends, we can differentiate our case from this case. this decision is regarding Grading system, while in our case UPSC uses Ranking system.So, in ranking sysytem, where 1 mark can decide your fate, in such situation to know our raw mark is our legal right under RTI, which is also upheld by many CIC decision and even High Court Decision.}

LPA No.1090/2011 Page 1 of 11

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24th May, 2012 + LPA No.1090/2011 % CENTRAL BOARD OF SECONDARY EDUCATION....Appellant Through: Ms. Manisha Singh, Adv. for Mr. Amit Bansal, Adv. Versus SH. ANIL KUMAR KATHPAL ..... Respondent Through: Respondent in person. CORAM :- HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW JUDGMENT RAJIV SAHAI ENDLAW, J. 1. This intra-court appeal impugns the judgment dated 07.12.2011 of the learned Single Judge dismissing W.P.(C) No.8532/2011 preferred by the appellant. The said writ petition was filed by the appellant assailing the order dated 27.09.2011 of the Central Information Commission (CIC) allowing the appeal of the respondent. 2. The daughter of the respondent passed the Class X examination held by the appellant in the year 2010 and her result declared by the appellant was as under:

LPA No.1090/2011 Page 2 of 11

SUB CODE

SUB NAME

GRADE

GRADE POINT

101

ENGLISH COMM.

A2

09

002

HINDI COURSE-A

A1

10

041

MATHEMATICS

A1

10

086

SCIENCE

A1

10

087

SOCIAL SCIENCE

A1

10

3. The respondent, under the provisions of the Right to Information Act, 2005, sought from the appellant the actual marks secured by his daughter in each subject for the reason “this information will help me to identify her week areas in studies and take timely action, so that she can pursue her career after XII. I hereby certify that I will neither reveal the above information to her nor put any pressure on her.” 4. The Information Officer of the appellant informed the respondent that with the introduction of the grading system at secondary examination with effect from the year 2010, the appellant had done away with intimating marks and therefore the information sought could not be provided. 5. The respondent preferred the statutory first appeal which was dismissed observing that: i) the National Policy on Education 1986 and Programme of Action 1992 had provided for recasting of the examination system and suggested that grades be used in place of marks;

ii) that the National Curriculum Framework 2005 also envisaged

LPA No.1090/2011 Page 3 of 11

an evaluation system which would grade the students on their regular activities in the classroom and enable students to understand and focus on their learning gaps and learn through these as part of Formative Assessment; iii). that the introduction of grades in the examination had been debated by the appellant also and after holding countrywide consultations and deliberations with eminent educationists and experts, the nine point grading system had been introduced in the secondary school examination from the year 2010; iv). The system of declaring subject wise marks had thus been replaced by subject wise grades and grade point; v). the purpose of introducing the grading system was to take away the frightening judgmental quality of marks, to lead to a stress free and joyful learning environment and was intended to minimize mis-classification of students on the basis of marks, to eliminate unhealthy cut-throat competition and to reduce societal pressure etc. The order denying information as to marks was thus upheld.

6. The respondent pursued the matter before the CIC. It was the

LPA No.1090/2011 Page 4 of 11

contention of the appellant before the CIC also that, to provide specific marks would be contrary to the policy of introducing the grading system and would undo the grading system. However the appellant, on enquiry by the CIC, confirmed that the marks awarded were available with the appellant in their data. The CIC held that since, the marks were available with the appellant and since none of the exemptions under the RTI Act were attracted to support the non disclosure thereof, the appellant was bound to and directed to provide the information sought. 7. It was the argument of the appellant before the learned Single Judge also that disclosure of the marks would dilute and defeat the grading system. The learned Single Judge however held that since the respondent was seeking disclosure of marks, only of his daughter and further since his daughter who has since attained majority had also consented to the same and since the respondent was not seeking disclosure of marks obtained by other students and further since the appellant was possessed of the information sought, it was required to disclose the same. It was further observed that a student is entitled to know the marks secured by him / her.

8. Notice of this appeal was issued and the operation of the impugned order stayed. The respondent appearing in person has been heard. Though

LPA No.1090/2011 Page 5 of 11

opportunity was given to the appellant to file written arguments but no written arguments were filed. 9. The documents filed by the appellant show that the appellant, vide its letter dated 29.09.2009 to the Heads of all the Institutions affiliated to it, while introducing the system of Grading at Secondary School level, explained the evaluation process as under: “2.3 In this system, student’s performance will be assessed using conventional numerical marking mode, and the same will be later converted into the grades on the basis of the pre-determined marks ranges as detailed below:

MARKS RANGE

GRADE

GRADE POINT

91-100

A1

10.0

81-90

A2

9.0

71-80

B1

8.0

61-70

B2

7.0

51-60

C1

6.0

41-50

C2

5.0

33-40

D

4.0

21-32

E1

--

20 and below

E2

--

The operational modalities were prescribed in the said letter as under: “4. Operational Modalities 4.1 The student’s performance shall be assessed using conventional method of numerical marking. 4.2 The ‘Grades’ shall be awarded to indicate the subject wise performance. 4.3 The ‘Grades’ shall be awarded on a nine point scale as per Table at para 2.3.

LPA No.1090/2011 Page 6 of 11

4.4 Only subject wise grades shall be shown in the “Statement of Subject wise Performance” to be issued to all candidates. 4.5 Subject-wise percentile score / rank at the National level shall be provided to the schools on demand.” 10. The appellant has also placed before us the judgment of Division Bench of this Court in Independent Schools’ Federation of India (Regd.) Vs. Central Board of Secondary Education 183(2011) DLT 211 upholding the grading system introduced by the appellant and dismissing the challenge thereto. The challenge to the grading system, in the said proceeding also was inter alia on the ground that replacing marks by grades was only a cosmetic change and would mar the quality of education and the concept of grading was virtually an eye-wash. Needless to state that the said challenge was also found to be without any basis and rejected. 11. What we find to have prevailed with the CIC and the learned Single Judge is that, despite introduction of grading system, marks existed with the appellant; it was held that once the information sought was available, there could be no denial thereof. What also prevailed was that the respondent was seeking marks only of his ward and not of other students and thus there could be no objection to disclosure thereof. The CIC also observed that the information sought was not exempt.

LPA No.1090/2011 Page 7 of 11

12. We are unable to agree; we feel that the CIC as well as the learned Single Judge, by directing disclosure of „marks., in the regime of „grades. have indeed undone what was sought to be done by replacing marks with grades and defeated the very objective thereof. The objective, in replacing the marks with grades, as can be gathered from the documents on record, was to grade students in a bandwidth rather than numerically; it was felt that difference, between a student having 81% and a student having 89%, could be owing to subjectivity in marking and there was no reason to otherwise consider a bearer of 81 percentile to be inferior to a bearer of 89 percentile and there was no reason to treat them differently. It was thus decided to place both in grade A2 with grade point 9 as aforesaid. Though ideally, the examiner in such cases ought to give both of them grade A2 only, without giving them 81% and 89% as aforesaid but it appears that since the teachers and examiners also, owing to the long past practice were used to marking instead grading students, for their guidance, the range was prescribed as aforesaid. Thus it appears that though the marks are available but in law and fact they ought not to have been available. The marks appear to be available with the appellant only owing to the examiners and teachers being not immediately accustomed to grading and for their convenience.

LPA No.1090/2011 Page 8 of 11

13. The question which arises is, whether the information which ought not to have been there as per the changed policy upheld by the Court can be treated as information within the meaning of the RTI Act. In our opinion no. Information which is forbidden by law or information of a nature, if disclosed, would defeat the provisions of any law or disclosure whereof is opposed to public policy, cannot be regarded as „lawful. and is to be ignored and no disclosure thereof can be made or directed to be made.

14. No doubt, as the CIC also has observed, none of the clauses of Section 8, if literally interpreted, are attracted. However while interpreting a statutory provision, we cannot shut our eyes to hard realities, to what was sought to be achieved thereby and cannot in a pedantic manner allow the literal interpretation to run amock and create a situation not intended by the statute. Moreover, a reading of the provisions of the RTI Act in the manner done by the CIC and the learned Single Judge would bring it in conflict with other laws and notwithstanding the overriding effect given thereto by Section 22 thereof, the first attempt has to be to harmonise its provisions with other laws. Once a purposive interpretation is given to Section 8, it will be found that information forbidden to be published [Section 8(1)(b)] and information available in fiduciary relationship [Section 8(1)(e)] is exempt.

LPA No.1090/2011 Page 9 of 11

In our opinion, even though there is no express order of any court of law forbidding publication of marks [as is the want of Section 8(1)(b)] but the effect of bringing the regime of grades in place of marks and of dismissal of challenge thereto, is to forbid publication/disclosure of marks. Similarly, in the evaluation process prescribed by appellant, for guidance of its examiners, marks are only to arrive at a grade, perhaps as aforesaid to acquaint the examiners with the grading system and as a transitory stage in the shift from marks to grades.

15. The Supreme Court in Kailash Chand v. Dharam Das (2005) 5 SCC 375 reiterated that a statute can never be exhaustive and legislature is incapable of contemplating all possible situations which may arise in future litigation and in myriad circumstances and it is for the Court to interpret the law with pragmatism and consistently with demands of varying situations. The legislative intent has to be found out and effectuated. Earlier also in Smt. Pushpa Devi v. Milkhi Ram (1990) 2 SCC 134 the same sentiment was expressed by holding that law as creative response should be so interpreted to meet the different fact situations coming before the court, for Acts of Parliament were not drafted with divine prescience and perfect clarity and when conflicting interests arise, the court by consideration of

LPA No.1090/2011 Page 10 of 11

legislative intent must supplement the written word with force and life. Lord Denning (in Seaford Estate Ltd. v. Asher (1949) 2 KB 481) observing that the judge must consciously seek to mould the law so as to serve the needs of time and must not be a mere mechanic, was quoted with approval. 16. The Supreme Court recently in The Institute of Chartered Accountants of India v. Shaunak H. Satya (2011) 8 SCC 781, in the context of the RTI Act itself held that in achieving the objective of transparency and accountability of the RTI Act other equally important public interests including preservation of confidentiality of sensitive information, are not to be ignored or sacrificed and that it has to be ensured that the revelation of information in actual practice, does not harm or adversely affect other public interests including of preservation of confidentiality of sensitive information. We have already held above that disclosure of marks, which though exists with the appellant would amount to allowing play to the policy earlier prevalent of marking the examinees. Merely because the appellant/its examiners for the purpose of grading, first mark the students would not compel this court to put at naught or to allow full play to the new policy of grades.

17. No weightage can also be given to the submission of the respondent

LPA No.1090/2011 Page 11 of 11

that the marks even if disclosed would not be used for any other purpose. Such an offer cannot be enforced by the Court and the Court cannot on the basis thereof allow disclosure of something which was not intended to exist in the first place. The possibility of the respondent and his ward, in securing admission and for other purposes using the said information to secure an advantage over others cannot be ruled out. 18. We are therefore unable to agree with the reasoning of the CIC and of the learned Single Judge and allow this appeal. We hold the information, disclosure of which was sought, to be no information and also exempt from disclosure. We allow this appeal as well as the writ petition preferred by the respondent and set aside the order dated 27.09.2011 of the CIC. No order as to costs. RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE MAY 24, 2012 gsr

FRAUD IN IAS/IPS EXAMINATION CONDUCTED BY UPSC(A CIVIL SERVICES REFORM MOVEMENT)

VISITORS

Tuesday 29 May 2012

RTI act,2005 and some other important judgments that can be referred by UPSC or may be of some use to us , while countering their arguments.