In your interest.
Online Personal Finance Magazine
No beating about the bush.
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].)
If only the spirit of cricket invested the actions of the leaders in politics, business, administration and law enforcement, what a wonderful world we would live in!
"We are all in the gutter, but some of us are looking at the stars," said Oscar Wilde. "Ah, but a man's reach should exceed his grasp, or what's a heaven for?" asked Robert Browning.
The cynics would say these quotes are Utopian nonsense; that these are pipedreams. Very well, let them. I believe that mankind has the right, indeed the duty, to dream that it is capable of thoughts and actions that lift it far above the morass. I believe that we must dream of a better life for all of mankind, to fantasise about cleaning the cesspool which forms the top social stratum, inhabited by the politicians, the moneybags, the manipulators and the white-kurta criminals.
We the common people of India are decent people, honest and kind (but sometimes sour) to our families and our neighbours. We work hard to give our families a comfortable life while walking the straight and narrow path of rectitude. But pressing down upon us is the dark, oily mass of the cesspool.
And so, when an ordinary man does something heroic, something that is heart-stoppingly statesmanlike and selfless, we stand up and cheer… and we dearly hope that the people in the cesspool at the top will behave with the grace and goodwill of that ordinary man whom we cheered.
Here is a quotation from one of the newspapers reporting what will in future be called the Trent Bridge miracle which epitomised the invincible spirit of Man.
"On the stroke of tea Bell became one of the central characters in a major controversy when he failed to realise the ball hadn't been called dead and was run out. The Indians appealed and after a lengthy inspection of the evidence the TV umpire gave Bell out, much to the disbelief of England. As the Indian players reappeared after the interval the home supporters booed MS Dhoni, but suddenly it turned to cheers when they saw Bell walking down the steps. Dhoni had reversed his decision and had immediately become a hero. At the afternoon drinks break the public address system asked the crowd to show their appreciation and they gave a standing ovation to the India captain."
We live in dark times. People at the very top of the political system have soiled hands that were dirtied by the 2G case and the Commonwealth Games affair (though they seem to have lily-white consciences). We had the Adarsh Housing society scandal. We have a mentally retarded young man labelled as a dreaded terrorist and shot in a fake encounter.
Around the world, London is burning. Europe is crumbling under the weight of its incredibly irresponsible handling of the sovereign debt of its constituent nations. Political gamesmanship by the Republican Party has forced the US President to agree to a humiliating compromise on the country's debt-deficit ceiling. The sovereign credit rating of the world's biggest economy has been downgraded by a rating agency whose reputation for manipulation in the interests of its clients is well known.
Take, for example, the organisation that employs our hero. Please consider this extract from a recent news agency report:
"The Parliamentary standing committee on finance has accused the Income-Tax Department of being 'very lenient' to the Board of Control for Cricket in India, saying the department had allowed the BCCI to "enrich its coffers at the expense of the exchequer".
"The Standing Committee told the I-T department, Reserve Bank of India and Corporate Affairs Ministry to expedite their investigations into the affairs of the BCCI and the Indian Premier League (IPL).
"The committee said: 'It is a matter of surprise that when the crass commercialisation of cricket was visible to the entire world, the Income-Tax Department chose to ignore it.'"
Crass commercialisation is such an old-fashioned word, but still evocative of corporate and individual greed at the expense of noble human endeavour. This is not cricket, is it? Nor does it reflect the spirit of cricket, following the principles on which we the common people grow up and live.
And what is the spirit of cricket? It is honesty, transparency, fairness in all actions towards everybody, the essence of fairplay, ethical behaviour towards all, the conviction that winning, even by foul means, is not everything, the conviction that at the end of the day a person must go to sleep with a clean conscience.
If only the spirit of cricket invested the actions of the leaders in politics, business, administration and law enforcement, what a wonderful world we would live in!
This again, the cynics will say is a pipe dream. Yes, all of us are in the gutter, but if our leaders looked at the stars? That would be a miracle.
But my definition of a miracle is that it is only an event of very low probability. And so, we the common people of the world have to wait for this event of very low probability. But we can, and must, hope; because the probability exists.
(R Vijayaraghavan has been a professional journalist for more than four decades, specialising in finance, business and politics. He conceived and helped to launch Business Line, the financial daily of The Hindu group. He can be contacted at [email protected]).
The CAG report reveals how select members from the Services and the civilian administration, politicians and individuals connected with them, benefitted from the illegal construction of the 31-storey building in the heart of Mumbai
The Comptroller and Auditor General of India (CAG) has said that the Adarsh Co-operative Housing Society (Adarsh CHS) episode poses serious questions of probity, integrity and ethics in public life and among public servants, which need to be addressed by the polity and it also displays failure at all levels of governance.
In a report, submitted in Parliament today, the CAG said, "The entire process of allocation of land to the (Adarsh) society, obtaining no objection from the Army, obtaining modification to the Mumbai Metropolitan Region Development Authority (MMRDA) development plan, getting a no-objection certificate (NOC) for residential development in coastal regulation zone (CRZ), obtaining NOC from Brihanmumbai Electric Supply & Transport Undertaking (BEST) for transfer of developmental rights of the adjoining land, getting additional floor space index (FSI), raising the height of the building, was riddled with instances of decisions being taken by those who exploited their official capacity for personal benefit."
"The episode of Adarsh CHS reveals how a group of select officials, placed in key posts, could subvert rules and regulations in order to grab prime government land-a public property-for personal benefit. They resorted to falsification of records, suppression of facts, ruse of welfare of servicemen and their widows and children, flouting of acts and rules," the CAG noted.
It said that the case is particularly alarming as individuals across the governance system at many levels have participated in this deceit and benefitted from it. The public has trusted these public servants to safeguard its interests, but there is enough evidence that they betrayed the fiduciary trust and acted against all norms of public interest and probity, the report added.
In February 2000, Ramchandra Sonelal Thakur, a serving sub-divisional officer (SDO) in the Defence Estates Office (DEO), Mumbai, in his capacity as chief promoter of Adarsh CHS, wrote a letter to the chief minister of Maharashtra for allotment of 38,542 square metres of land in Block VI of Backbay Reclamation Scheme (BBR) at Colaba, for the construction of a residential building, for the welfare of serving and retired personnel of defence services.
"The letter of the chief promoter (RS Thakur) would clearly indicate the knowledge that the land was in the possession of the Army. However, the title of the land was never transferred to the Ministry of Defence. As subsequent events would prove, this fact of possession of land by the Army without holding the title of the land was exploited in full, to misappropriate the land for private benefit," the CAG observed.
From the very beginning, the welfare of the servicemen and ex-servicemen in one form or the other was used as a ruse to grab this piece of public land. In various correspondences from the Society, defence authorities and the Government of Maharashtra at different points of time, the prime reason for allotment of the land has been described as welfare of service personnel and ex-servicemen.
'Girls' hostel for wards of army officers posted in far flung areas', 'Welfare of Kargil war heroes', 'Welfare of widows of servicemen', 'Welfare of soldiers who have served their motherland' were used as grounds on almost all occasions for seeking relaxations in favour of the Society at different points of time.
The report by CAG said, "It would be only reasonable to conclude that though references to 'widows' and 'Kargil Heroes' was being repeatedly made, such could never have been the intention, as these individuals would not have the financial capability to meet the cost of apartments in this structure."
The chronology of the events shows the alacrity with which the varied requests of the Adarsh CHS were attended to. It illustrates how permissions were sought, and granted, on grounds, which do not now stand to public scrutiny. It also indicates how vague clearances, susceptible to multiple interpretations, were provided to facilitate the rather dubious intentions of the members and promoters of the Society.
The complicity, as is evident, is from the organs of the Maharashtra Government, the Armed Forces, the central government and local bodies, each of which is otherwise prone to be intransigent when approached by a common citizen, the report said.
According to CAG observations, all service officers except one, who held charge as General Officer Commanding Maharashtra, Gujarat and Goa Area, between February 1998 and July 2010, became beneficiaries as per the lists of members of the Adarsh CHS as made available by Collector of Mumbai city.
By 2002, Admiral Madhvendra Singh, former Chief of Naval Staff, and Lt Gen GS Sihota, had become members of the Adarsh CHS, apart from many other officers from the Army and the Navy. Eventually, General NC Vij and General Deepak Kapoor, former chiefs of army staff, also became members of the Adarsh CHS.
"Notable among the service officers who became members of the Society at a later date were two former Chiefs of Army Staff, General NC Vij and General Deepak Kapoor. Both of them were allowed to be members of the Society as 'one-time special case' keeping in view their noteworthy service in the Indian Army and their social status," the CAG said.
The list of the members as intimated by Adarsh CHS to the Mumbai City Collector, on 10 April 2000, indicated that the Society largely comprised members belonging to the defence services and civilian organisations related to defence. Out of the 40 members, 30 were serving and retired service officers, eight belonged to Defence Estates Office, one officer belonged to the Military Engineer Services (MES) and one was a widow of a retired MES employee. However, the final list of 102 members as of 2010 included 37 defence officers, including civilians, 15 retired government servants, eight Members of Parliament or state legislatures and 42 individuals, who were mostly relatives of government officers and politicians.
At almost every stage, the Maharashtra government extended significant concessions in favour of the Adarsh CHS. Many officers-both civilian and services-who were dealing with the case and were instrumental in taking those decisions, eventually became members of the Society. In some cases, relations of these officers became the members.
The Urban Development Department (UDD), in April 2002 approved modifications to the MMRDA development plan, deleting a 60.97 metres wide road leading to the south Colaba harbour link and reducing the width of Captain Prakash Pethe Marg from 60.97 metres, to a mere 18.40 metres, and the inclusion of the deleted area in the residential zone, parade ground, helipad, garden and BEST Depot.
However, the CAG said, "During the audit, it was noticed that on past occasions, the Government of Maharashtra had decided against allotment of the land for genuine welfare of ex-servicemen on the ground that the land was earmarked for widening of the very same road."
On 17 March 2003, Mr Thakur wrote a letter for allotment of additional FSI of adjoining plot of 2669.68 sq metres used by BEST as approach road to its depot on payment of reasonable charges. "Interestingly, in his letter, the chief promoter termed the use of the land by BEST as 'unauthorized' and also stated that BEST cannot use the FSI of this land for expansion of depot due to CRZ restrictions," the report noted.
Initially, BEST was reluctant to transfer the FSI to Adarsh CHS. However, Ramanand Tiwari, principal secretary of the UDD gave a proposal to BEST, which the public undertaking could not fulfil and subsequently agreed to transfer the FSI to Adarsh CHS.
"It would be clear from the meetings that the proposal of the Principal Secretary to ask BEST to pay for the land, amounted to a threat which possibly compelled BEST to succumb to agree with the proposal of the Society. Asking a public utility to pay the market price of the land essentially to compel them to agree to transfer the FSI in favour of the private society was blatant violation of all norms of public interest. While BEST was asked to pay the cost of land at the market rate, the Society paid only Rs6.14 crore," the CAG report noted.
Read the complete CAG report on the Adarsh Co-operative Housing Society case