The apex court has ruled that evaluated answer-sheets are covered under the definition of “information” under the RTI Act. This judgment applies to all examinations including the Public Service Commissions, Universities, CBSE and other boards, professional bodies like ICAI—in fact, every examination conducted by any agency in India.
On 25th May, (Result Season: Thanks to RTI, students can now access their answer sheets) Moneylife had mentioned that though copies of answer sheets were being made available to students in several instances under the RTI (Right to Information) Act, a Supreme Court judgment was awaited in this matter.
A Kolkata student, Pritam Rooj would never have imagined that his aborted crusade of trying to procure a copy of his answer sheet from Presidency College, Calcutta University in 2007, would eventually be taken forward by two esteemed organisations in the country working for transparency-Mazdoor Kisaan Shakti Sangathan (MKSS) and Join Operation for Social Help (JOSH) to a thumping and applausive logical end.
On Tuesday, the Supreme Court gave a historic order ruling that every student of this country has the right to get a copy of his or her answer-sheet in every examination he or she sits for-be it the state board, CBSE or any competitive examination!
Here's a recap:
Kolkata student Pritam Rooj obtained 91.6% in the Class X examination and 80.8% at the Higher Secondary (Class XII) examinations. He enrolled for the mathematics honours course at Presidency College, Calcutta University. In the Part I Bachelor's degree examination, in 2005, Pritam secured 52%. The following year, he appeared for the Part II exam and got 208 marks out of a maximum 400. He was shocked to see that he got only 28 marks out of 100 in the fifth paper.
Pritam applied for re-evaluation of the paper. On re-evaluation, he received four marks more in the fifth paper and a fresh corrected mark-sheet was issued to him. However, since he did not get a first class in his Bachelor's course, he could not get admission to the Indian Institute of Science, Bengaluru.
On 14 August 2007, Pritam made a request under the RTI Act, seeking a copy of his university answer-sheet. The PIO replied: "In response to your above application I am to inform you that it has been decided that henceforth no inspection of any answer script of any examination conducted by the University shall be allowed to any applicant under the Right to Information Act, 2005. Thus we cannot entertain your application and the same is rejected."
Pritam was compelled to seek legal intervention. While the University refused to divulge information, the Calcutta High Court gave an order in Pritam's favour. In a detailed order by the Single bench of the High Court dated 3 March 2008, the Hon'ble Mr Sanjib Banerjee allowed the petition filed by Pritam Rooj and directed the University of Calcutta to disclose the answer-sheets.
This order given in favour of the student was challenged before the division bench of the Calcutta High Court by the University of Calcutta. CBSE also approached the Calcutta High Court against the order of the single bench of the Calcutta High Court allowing disclosure of the answer-sheet. The division bench of the Calcutta High Court also stood by its order.
However, on 5 February 2009, both the Calcutta University and the CBSE approached the Supreme Court. Subsequently, various other institutions conducting examinations like the Institute of Chartered Accountants of India, Assam Public Service Commission, West Bengal Board of Secondary Education, West Bengal Council for Higher Education, West Bengal Central School Service Commission and Bihar Public Service Commission also joined in and opposed the disclosure of answer-sheets to the examiners.
By this time, quite understandably, the student who triggered off this issue, Pritam Rooj, decided to give up pursuing the case at the Supreme Court. Since he did not represent to argue his case, on 3 April 2010, Human Rights Law Network (HRLN) represented by Advocate Divya Jyoti Jaipuriar filed an intervention application on behalf of the applicants MKSS and JOSH, who joined in to address this issue which concerns millions of students of the country.
The petitioners spearheaded by the representative of the Calcutta University contended in the Supreme Court that evaluated answer-sheets are not covered under the definition of the "information". They also stated that the evaluated answer-sheet is kept with the institution under "fiduciary'' capacity and that if the disclosure of the copy of the original answer sheet was allowed, the entire system will collapse.
It maybe recalled that the Karnataka Information Commission in one such case has observed as follows regarding a "fiduciary" relationship: "As may be seen, section 8 (1) (e) exempts disclosure of information available to a person in his fiduciary relationship. According to the Oxford dictionary, the word "fiduciary" means "involving trust, especially with regard to relationship between a trustee and a beneficiary".
"The fiduciary relationship for the purposes of this section would imply that the person holding the information is not the owner of the information but holds it in trust for someone else who is the owner and the beneficiary. In this case, it therefore needs to be examined whether this type of relationship exists between the authority conducting the examination and the examiners as recognized by CIC and pleaded by the Respondent.
"The relationship between the authority conducting the examination and the examiners is governed by the terms and conditions of appointment of the examiners. It is wrong to say that confidentiality should be maintained by both, of the manner and method of evaluation. Firstly, this Commission finds it difficult to endorse the general statement that the manner and method of evaluation should be kept confidential. In this Commission's view, general instructions regarding the manner and method of evaluation must be consistent and should be made known in advance to the candidates, so that they are aware as to how their answers would be evaluated. As regards "key" or "model" answers, these should also be made public after the entire process of selection is over.
"Secondly, while examiners are bound by the secrecy clause in their order of appointment, there can be no such obligation on the part of the authority conducting the examination. There is no agreement between the examiners and the authority conducting the examination that the information regarding valuation and award of marks is being held by the authority conducting the examination in trust and on behalf of the examiners. In fact, the examiner has been assigned a task and thereafter his responsibility ceases. He has no authority thereafter to claim that the answer books evaluated by him and marks awarded by him should be treated as confidential and that copies of the same should not be made available. In fact such a provision, if it was made, would be a complete antithesis of the fairness in evaluation system. This Commissioner therefore is of the view that in the fiduciary relationship between the Authority conducting the examination and the examiners, while the Authority is the owner/beneficiary of the information, the examiner is the trustee and not the other way round. The examiners have to hold the answer-scripts and the marks awarded by them as confidential, in trust for the authority conducting the examination, since they are not the owners of the information. But there is no such obligation on the authority, which in this case owns the information."
In the landmark judgment on Tuesday, the Supreme Court allowed the disclosure of the answer-sheets under the RTI Act to the examinee. The bench comprising Hon'ble Justice RV Raveendran and Hon'ble Justice AK Patnaik dismissed the petitions filed by different Public Authorities and affirmed the judgment of the Hon'ble Calcutta High Court allowing the disclosure of answer-sheets.
States a jubilant Divya Jyoti Jaipuriar, "In the order delivered yesterday, the bench clarified that the evaluated answer-sheet is covered under the definition of "information". It also clarified that it is the duty of the Public Authority to allow maximum disclosure as envisaged by the RTI Act.''
Divyapur further stated, "Dealing with the issue of "fiduciary relationship", the court has explained the fiduciary relationship in detail and held that the examination conducting bodies do not retain the evaluated answer-sheets under any fiduciary capacity. Hence, the Court held that that the exemption under section 8 (1) (e) will not apply to the disclosure of answer-sheets. The Court also dismissed the contention that the entire system will collapse once disclosure is allowed under the RTI Act. As a matter of fact, it was argued on behalf of the MKSS and JOSH that some universities allow disclosure of answer-sheets under the RTI Act and they do not face any difficulty in the process and their system have not "collapsed".''
In a press release, The National Campaign for Peoples' Right to Information (NCPRI) welcomed the landmark judgement of the Supreme Court Bench comprising Justice RV Raveendran and Justice A K Patnaik today, allowing the disclosure of the answer sheets of examinations conducted by any agency in India, under the RTI Act. The NCPRI believes this ruling would positively affect the transparency rights of lakhs of students of all kinds across the country including examinations conducted by school boards, Universities and public service commissions, and help bring about the much-needed reform in the examination system in the country. It congratulated the applicants for pursuing the matter to its logical conclusion.
This landmark judgment has also snubbed the joint decision made by the Central Information Commission (CIC) which was particularly against students appearing for CBSE. The CIC which was hearing several petitions together of students appearing for various board and competitive examinations on 23 April 2007 gave an order stating that "Before us are appeals in relation to examinations conducted by CBSE, Lok Sabha Secretariat, Jal Board, DDA and North Western Railways. Insofar as CBSE is concerned, we have held that denial of disclosure has been correctly done. In respect of the other public authorities, we are of the view that each public authority conducting examinations shall disclose the evaluated answer sheets to the applicants subject to the guidelines set forth in the preceding paragraphs. The other cases are remanded back to the concerned Information Commissioner for issuing appropriate directions taking into consideration the broader principles laid down and indicated in the preceding paragraphs. All the appeals are disposed of in the above terms. Copies of the decision be sent to all concerned free of cost."
Now, Public Information Officers and Information Commissioners will not have to abide by the joint CIC decision as the Supreme Court in one sway has allowed access to copies of answer sheets of all examinations.
(Vinita Deshmukh is a senior editor, author and convener of Pune Metro Jagruti Abhiyaan. She can be reached at [email protected].)