Central Information Commission
Shri G. Veerabahu vs Lok Sabha Sectt. on 4 March, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2008/00867 dated 7-5-2008
Right to Information Act 2005 - Section 19
Appellant: Shri G. Veerabahu
Respondent: Lok Sabha Sectt.
FACTS
By an application of 19-2-08 Shri G. Veerabahu of JNU, New Delhi applied to Shri Deepak Goyal, Director (Q), PIO, Parliament Annex, New Delhi seeking the following information:
"a) Provide me certified copies of the Evaluation procedure approved by the Competent Authority for the post of Junior Parliamentary Interpreter.
b) Specific for procedure approved and adopted in evaluation of simultaneous interpretation test.
c) Provide me the marks scored by the 08 candidates who appeared for regional languages interpretation in each test from oration to their final stay for the test conducted from 15.2.2008 to 17.2.2008. If the total mark was divided for specific purpose provide me same with details.
d) Details of regional language candidates like name, age, category and their regional language.
e) Provide me the translation of test passage given to Tamil Regional Test. Also provide me the evaluated test paper duly attested by the examiner of both the Tami candidates.
f) Provide me the audio tape of the interpretation done by the Tamil language candidates (Reg No. 08 & 59)."
The request of 19-2-08 was transferred by the Rajya Sabha Secretariat to the Lok Sabha Secretariat u/s 6 (3) vide their letter of 26-2-08. Applicant Shri Veerabahu received a response dated 28-3-08 from Deputy Secretary-II, Lok Sabha Sectt. as follows:
"In continuation of this Secretariat letter of even number dated 14.3.2008, I am directed to forward 02 pages of information."
Because the answers dealt with questions at (a) and (b), Shri Veerabahu moved his first appeal before Shri S.K. Sharma, Addl. Secretary, Lok Sabha Sectt. and while submitting his arguments in some detail has opened the arguments with the following:
1"At the very outset let me clear the fact that at no point, the CPIO has mentioned any of the Sections of the RTI Act to withhold the information. This amply clarifies that my request for information under RTI Act is tenable and as per the provisions of RTI Act the CPIO should have provided the information to me."
Shri S.K. Sharma AS, in his response of 30-4-08, has held as follows:
"I find that the information sought by you in points (c ) (f) of your application clearly attract the provisions of Section 8 (1) (g) and 8 (1) (e) of the RTI Act, 2005. Hence, I find no merit in your appeal."
Upon this Shri Veerabahu moved his second appeal before us in which his prayer is as follows:
"The appellate authority has disposed of my appeal under Section 8 (1) (e) and (g) of RTI Act. I still feel strongly that the stand taken by him also questionable and further substantiate my gut feeling that I am being discriminated deliberately. It is also not understood that how the life of the candidate will be endangered by simply obtaining marks scored by them or the source of the information will be disclosed once all know that it is a information related to examination conducted by the Parliament of India.
In view of the above. I request your august body to defend the Right to Information, to direct the JRC to provide me with the information and also take suitable actions for withholding the information under the provisions of the Act."
He has followed this up with a further representation of 25-6-08 in which he submitted as follows:
"The Commission in its Full Bench decision on 23.4.2007 in the complaint of Shri R. K. Singh vs. Lok Sabha Secretariat (CIC/WB/C/2006/00223) and others (CIC/WB/A/2006/00469 & 00394 & CIC/OK/A/2006/00266, 00058, 000666 & 00325) has directed the Lok Sabha Secretariat not only to provide mark sheet of the candidates and also to provide evaluated answer sheets.
Despite the decision of the Commission, the Lok Sabha Secretariat has refused to give me the required information by giving the same reasons and sections that have already been overruled by the Commission. This blatantly wilful misuse of power of the respondents has made me to suffer and run to other constitutional bodies for justice."
The appeal was heard on 4-3-2009. The following are present.
Appellant 2 Shri G. Veerabahu.
Respondents Shri V.S. Negi. CAPIO.
Shri Pawan Kumar, DS, Lok Sabha.
Shri Harish Chander, DS-II.
Shri S. S. Pradhan, Ex Asst.
Shri Pawan Kumar, DS, Lok Sabha Sectt submitted that the information sought from (c ) to (f) of the application of Shri Veeraprabhu was personal information to third parties and, therefore, could not be provided. In addition Shri V.S. Negi submitted that providing such information will set a bad precedent because although in this case the number of candidates was only 8, disclosure of such information could also cover cases where there were large numbers of candidates which would become impossible to service.
Respondent also submitted that no separate copy on Tamil language of the audiotape has been maintained and, therefore, providing copies of audiotapes goes well beyond the requirement of appellant Shri Veerabahu. In this case he cited the decision of this Commission in complaint No. CIC/WB/C/2006/00223 and appeal Nos. CIC/WB/A/2006/00469 & 00394, and CIC/OK/A/2006/00058/00066/00315 announced on 23-4-2007 in which we have found as follows:
"34. The Supreme Court has examined the issue of public interest in the matter of allowing candidates to inspect their answer books or the revaluation of the answer papers in the presence of the candidates, in Maharashtra State Board of Secondary and Higher Education Vs. Paritosh Bhupeshkumar Sheth & anr.(AIR 1984 SC 1543). In that case, the Rules framed by the said Board provided "No candidate shall claim or be entitled to revaluation of his answers or disclosure or inspection of the answer books or other documents as these are treated by the Divisional Board as most confidential".
The constitutional validity of the above rule was challenged as being in violation of the principles of natural justice. The Court held:
"The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate 3 in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners."
The Court, further observing that the constitutional validity of a rule, among other aspects has to be tested to see whether it infringes any of the fundamental rights or other restrictions or limitations imposed by the Constitution, held that the said rule did not infringe any of the fundamental rights. The Court further noting, that the procedure evolved by the Board for ensuring fairness and accuracy in evaluation of the answer sheets had made the system as fool-proof as can be possible , observed as follows:
"The High Court has relied upon the fact that the University of Bombay and some other Universities have recently made provisions permitting candidates to demand revaluation. In our opinion, this has little relevance for the purpose of deciding about the legal validity of the impugned regulations framed by the Board. We do not know under what circumstances the University of Bombay has decided to recognize a right in the examinees to demand a revaluation. As far as the Board is concerned it has set out in the counter-affidavit the enormity of the task with which it is already faced, namely, of completing twice during each year the process of evaluation and release of results of some 3 lakhs of candidates appearing for the S.S.C. and H.S.C. examinations to be held in an interval of only a few months from one another. If the candidates are all to be given inspection of their answer books or the revaluation of the answer papers is to be done in the presence of the candidates, the process is bound to be extremely time consuming and if such a request is made by even about ten per cent of the candidates, who will be 30,000 in number, it would involve several thousands of man hours and is bound to throw the entire system out of gear. Further, it is in the public interest that the results of Public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates, beside leading to utter confusion on account of the enormity of the labour and time involved in the process."
Appellant Shri Veerabahu responding to the arguments also cited the same decision of this Commission in the above mentioned case in his favour 4 and has cited Paras 42 and 43 of the Decision, which are the concluding Paras and read as follows:
"42. However, insofar as the departmental examinees are concerned or the proceedings of Departmental Promotion Committees are concerned, the Commission tends to take a different view. In such cases, the numbers of examinees are limited and it is necessary that neutrality and fairness are maintained to the best possible extent. Disclosure of proceedings or disclosure of the answer sheets not only of the examinees but also of the other candidates may bring in fairness and neutrality and will make the system more transparent and accountable. The Commission, moreover finds that the proceedings of the Departmental Promotion Committees or its Minutes are not covered by any of the exemptions provided for under Section 8(1) and, therefore, such proceedings and minutes are to be disclosed. If a written examination is held for the purpose of selection or promotion, the concerned candidate may ask for a copy of the evaluated answer sheet from the authority conducting such test/examination. The right to get an evaluated answer sheet does not, however, extend to claiming inspection of or getting a copy of the evaluated answer sheets concerning other persons in which case, if the concerned CPIO decides to disclose the information, he will have to follow the procedure laid down under Section 11 of the Right to Information Act.
43. 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.
DECISION NOTICE This is a simple request for the mark sheet of a limited examination in which there have been only 8 candidates. Taking the view that this information will in any way "endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law 5 enforcement or security purposes" which is the substance of Section 8 (1) (g), cited as the basis of exemption in this is absurd.
Similarly, we have held that whereas Section 8 (1) (e) concerning the fiduciary relationship may apply with regard to the identity of examiners, it cannot apply with regard to disclosure of the evaluated test paper.
The Supreme Court judgment cited in the defence by the respondents has, in fact, been dealt with in our decision of 23-4-07 and have noted as follows:
"37. A reading of the above two judgments of the Hon'ble Supreme Court will reveal that both judgments are based on larger public interest, which is also the foundation of RTI Act. However, in coming to the above conclusions, the Court has taken into consideration the facts that the rules of the Board do not provide for inspection of the evaluated answer sheets, that a large number of candidates are involved, that the examiners are appointed with care, that there is an inbuilt system of ensuring fair and correct evaluation with proper checks and balances.
This can, therefore, not apply in the present case involving only 8 candidates as we have already found in our decision notice of 23-4-07. Besides the above we have given a number of decisions with regard to disclosure of mark sheets including our Decisions in file nos. CIC/MA/A/2006/00308 of 28.8.'06, Shri Pramod Kumar Gupta vs. Canara Bank; CIC/WB/A/2007/00124 of 13.12.'07,Narendra Yadav vs. High Court of Delhi; CIC/MA/A/2008/00425 of 5.6.'08, Shri Ajay Kumar Roy vs. SAIL and others.
Besides, the High Court of Calcutta in its decision of 28.3.'08 in Pritam Rooj vs. University of Calcutta & Ors. AIR 2008 Cal118 has ruled as follows:
"xxx
48. And then there is the Central Information Commission's judgment of April 23, 2004. In addressing a question, whether answer scripts should be furnished following a request to obtain information made under the said Act, the Commission framed two main questions. The first was as to whether the disclosure 6 of evaluated answer scripts was exempted under Section 8(1)(e) of the said Act, and the second as to whether such disclosure was exempted under Section 8(1)(e) of the Act. Section 8(1)(e) exempts the disclosure of any 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. Section 8(1)(e) exempts the disclosure of any information 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.
49. In dealing with such questions, the Commission noticed the argument made on behalf of the public authorities before it that an examining body is obliged to not disclose the identity of the examiners as such disclosure would be in breach of the fiduciary duty said to be owed by the examining body to the examiners. The connected argument was also noticed, that upon the identity of the examiners being revealed their lives and physical safety may be at risk. It is not necessary to go into the reasons as to why the Commission found that neither Section 8(1)(e) nor Section 8(1)(g) exempted disclosure of the evaluated answer scripts as the Commission held that only the disclosure as to the identity of the examiners was exempted. It is the argument as to the unworkability of the right to inspect answer scripts that ultimately weighed with the Commission. In the words of the Commission.
"... It is matter of common knowledge that the parents and the students are never satisfied with their assessment. Every University and Board has a mechanism for re-evaluation, which can be made use of by those who have genuine apprehensions about the fairness of the system. The disclosure, therefore, of the evaluated answer sheets may be taken recourse in rare cases but it cannot have an en-bono application, unless the University or the Board as the case may be introduces a system where the giving back of the evaluated answer sheets becomes or is made a regular practice, which this Commission hereby recommends."
50. The Commission thereafter noticed the Paritosh Bhupeshkumar Sheth case, a Constitution Bench judgment in Fateh Chand Himmatlal v. State of Maharashtra reported as (1977) 2 SCC 670: (AIR 1977 SC 1825) and the Suvankar case to conclude that the Supreme Court pronouncements negating an examinee's right to demand disclosure and personal inspection of his answer script, were based on larger public interest which the Commission also found to be the basis of the said Act. The Commission thereafter proceeded to make a distinction between public examinations conducted by 7 institutions established by the Constitution or by any enactment like the Union Public Service Commission or Universities or the Central Board of Secondary Education and examinations conducted by other public authorities whose principal function is not of conducting examinations but who h old examinations for filling up posts either by promotion or by recruitment. The commission held that for public authorities designed to conduct examinations, a citizen cannot seek disclosure of the evaluated answer script under the said Act. But for other public authorities incidentally conducting examinations, "the disclosure of the answer sheets shall be the general rule but each case may have to be examined individually to see as to whether disclosure of evaluated answer sheets would render the system unworkable in practice". The Commission added a rider to the case of public authorities incidentally conducting examinations : the identity of the examiner, supervisor or other person associated with the process of examination should not be disclosed so as to endanger their lives or physical safety, and if it was not possible to make over the information without concealing the identities of the connected persons, the public authority could decline the disclosure of the evaluated answer scripts under Section 8(1)(g) of the said Act. In case of departmental examinees, the Commission took a view that disclosure of proceedings and disclosure of answer scripts, not only of the examinees but also of the other candidates, was necessary to bring in fairness and neutrality for the system to be more transparent and accountable.
51. In effect, the Commission discovered an exemption not expressly provided for in the statute to deny information despite accepting that the words used in the said Act could not be read to be a bar to the right asserted thereunder, But more on the Commission's opinion later
52.In its long title the said Act proclaims to set about a personal regime of right to information for citizens. The preamble opens with a reference to the Constitution having established a democratic republic and the need, therefore, for an informed citizenry. The preamble reveals that the legislature was mindful of the likely conflict between revelation of information and efficient operation of the Governments: of optimum use of resources: and, most significantly, the need to preserve the paramount virtue of the democratic ideal:
"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 8 Governments and their instrumentalities accountable to the government;
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."
53.If it is the preamble that has to be looked into for the reason for, or the spirit of, the statute as a key to open the minds of the makers of the Act and the mischief they intended to redress, the makers appear to have been alive to the likely difficulties of the executive to live up to the Act.
xxx 66 Right to information jure gentium has to be understood on the commission opinion, that is the evidence of what the law is, on the basis of how courts have interpreted the right under Article 19 of the Constitution. As the said Act is of rent vintage, the principle of contemporane exposition is not available for the opinion of the Central Information Commission, to the extent of its understanding that there is no express bar in the said Act to answer scripts being otherwise made available, to be relied upon. Yet such Commission is a body that deals with matters under the said Act and reads the words of the statute on a regular basis to direct or refuse the disclosure of information. The Commission answered the two questions directly raised on the provisions of the said Act against the public authorities an yet found the hardship factor call it inconvenience or unworkability which is not expressly included in the statue as a ground for exemption to be standing in the way of the answer scripts being made available to their authors. But though the examinees failed before the Central Information Commission there is a pious wish recorded in the order for their benefit recommending making over of answer scripts to examinees upon a regular procedure being set down in that regard.
67. On a plain reading of the right amplified under the said Act the question that it ought to stimulate upon a request being received is not why, but why not. If information has to be supplied unless it is exempted the reason for refusal has to be found in Section 8 or not at all.
968. Since three of the ten clauses of Section 8 (1) of the said Act have already been referred to the other seven may be seen. Clause (a) of sub-section (1) of Section 8 deals with information that would compromise the sovereignty or integrity of the country and like matter; clause (c ) covers such matters which would cause a breach of privilege of the Parliament or the State Legislatures; clause (d) protects information of commercial nature and trade secrets and their ilk; clause (f) prevents information being disseminated if it is received in confidence from any foreign government; clause (h) bars access to such information which would impede the process of investigation or apprehension or prosecution of offenders; clause (i) forbids records and papers relating to deliberations of ministers and officers of the executive being made available, subject to a proviso and, clause (j) prohibits disclosure of personal information unless there is an element of public interest involved. The proviso at the foot of clause (j) appears to cover the entirety of section 8 (1) notwithstanding the view taken by the Division Bench of the Bombay High Court. The manner in which the exceptions to the rule have been carved out in section 8 and the proviso which appears to govern all the cases covered by Section 8 (1) of the said Act makes the exemption section exhaustive.
69. Construction of a statute on the grounds of hardship or inconvenience or in justice or absurdity or anomaly arises if the statute presents a choice. The said Act does not appear to present one. For the rule of mischief to come into play there have to be material words that are capable of bearing two or more constructions. The rule of purposive construction or the mischief rule as enunciated in the Heydon case has been accepted by the Supreme Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar reported at 1955 (2) SCR 603; (AIR 1955 SC 661) "23 It is a sound rule of construction of a statue firmly established in England as for back as 1584 when Heydon's case (3 Co. rep 7a; 76Er 637) was decided that:
"......for the sure and true interpretation of all statues in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st What was the common law before the making of the Act, 2nd What was the mischief and defect for which the common law did not provide.
3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth., and 4th The true reason of the remedy; and then the office of all the Judges is always to make such construction 10 as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief and proprivato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bona publico."
70. Even if the Heydon questions were to arise in the present case the answers to them would not permit the disclosure of answer scripts being resisted. There is no discernible change of law attempted by the said Act. It has fuelled the burgeoning aspiration of a people for transparent governance. If there is any mischief that the said Act seeks to address. It is to make the right guaranteed by the Constitution more explicit. The remedy that the Parliament has prescribed is to cure the malaise of clandestine, cloak and dagger functioning of any public authority. The true reason of the remedy is to ensure a level playing field.
71. If then there is hardship in its implementation or in the fructification of the aspirations recognized therein it is not for the Court to rein in the desirable curiosity that the Act has unleashed but for other measures to be adopted to pave the way for its operation. If the Central Information Commission could have recognized the spirit of the Act to have recommended the return of answer scripts to examinees, that there is an immediate hardship or harsh consequence is of no relevance.
72. The Act provides a right to receive information and the consequence of the making over of such information is immaterial in the matter of construction of its provisions. As to whether an examinee would use the information received on inspection of his answer script to undo the finality of the process of examination is not an argument that can be considered to curb the operation of the state. The Act begins with a citizen's right to obtain information and ends with the information being made available to him or his request being justly rejected on the grounds recognized by the Act what happens before and what may be the consequence of the information being made available or rightfully denied is a matter beyond the operation of the Act.
73. The University's first challenge (and it is, indeed the University's challenge as the onus is on the rejection being required to be justified) that what an examinee seeks in asking for inspection of his answer script is not information at all cannot be accepted. In the stricter sense if such answer script answers to the description of information. Whether such information is of 11 the examinee's creation counts for little. In the broader perspective, if a document submitted takes on any marking it becomes a new document. The University's offer of making the marks allotted to each individual question available to all candidates is fair and laudable but not if it comes with the rider that the answer scripts should then be exempted from being divulged. Notwithstanding the principle of severability contained in Section 10 of the said Act the answered paper with or without an examiner's etchings thereon is not information exempted under any of the limbs of Section 8.
74. As a matter of principle, if answer scripts cannot be opened up for inspection it should hold good for all or even most cases. Since the said Act permits a request for third party information, subject to the consideration as to desirability in every case, a third party answer script may, theoretically be sought and obtained. The University's first argument would then not hold good for a third party answer script would be information beyond the knowledge of its seeker.
75. There is an understandable attempt on the University's part to not so much as protect the self and property of the examiner, but to keep the examiner's identity concealed. The argument made on behalf of the public authorities before the Central Information Commission has, thankfully, not been put forward in this case. This University has not cited the fiduciary duty that it may owe to its examiners or the need to keep answer scripts out of bounds for examinees so that the examiners are not threatened. A ground founded on apprehended lawlessness may not stultify the natural operation of a statue, but in the University's eagerness here to no divulge the identity of its examiners there is a desirable and worthy motive- to ensure impartiality in the process. But a procedure may be evolved such that the identity of the examiner is not apparent on the face of the evaluated answer script. The severability could be applied by the coversheet that is left blank by an examinee or later attached by the University to be detached from the answer script made over to the examinee following a request under section 6 of the Act. It will require an effort on the public authority's part and for a system to be put in place but the lack of effort or the failure in any workable system being devised will not tell upon the impact of the wide words of the Act or its ubiquitous operation.
76. Whether or not an examiner puts his pen to the answer script that he proceeds to evaluate would not rob the answer script of retaining its virtue as information within the meaning of the said Act even if it is made available for inspection in the same form as it was received from the examinee. The etchings on an answer script may be additional information for a seeker 12 but the answer script all along remains a document liable to be sought and obtained following a request under section 6 of the Act. That the etchings may be pointless or that they may be arbitrary or whimsical in the absence of any guidelines, makes little difference.
77. Education is more than just reading prescribed texts and taking examinations in a given format, it is more than a garnering of degrees, certificates and diplomas. Any real education requires the amassing of knowledge that may or may not be in the prescription for an examination. An educated human being may also strive to create a new body of knowledge that is outside the purview of prescriptions. There can be no education if limits are imposed on the amount and type of knowledge an individual may gather or create. A democracy can only be functional in all its aspects extents and senses when there is an informed citizenry.
78. The right to information is the most basic empowerment of the individual- the right of an individual to the source of any knowledge required for him to educate him self in any are he may choose.
79. An examining authority may not tell a student that he must learn how to answer questions in the format the examining authority desires, yet leave the examinee uninformed of the manner of evaluation. The examining authority cannot be exacting in its demand for transparency and clarity in answers to its questions, and yet remain in scriptable and veiled in its methods of evaluation. An examining authority has every right to judge the student's knowledge and expression of that knowledge, but it cannot take away the examinee's right to know the methodology of and the criteria for its evaluation. But again this is straying into the zone of the consequence of information of the subject kind being made available.
80. An examinee who has written hurried answers and solved problems under examination coordination sometimes several months before he gets the mark sheet does not really "know" his answers. His memory of what he wrote will not be complete or accurate. He may not been have a clear recollection of what he has recorded in his answers. Alternatively he may feel that he has written something that he actually has not. His silly mistakes, graphical or grammatical errors and oversights may not be obvious to him. A look at his evaluated answer script can serve the wonderful purpose of pointing out his mistakes- whether or not the evaluated paper marks such mistakes- clarifying his doubts and helping him to know once and for all, what he wrote and what he did not.
1381. If inspection of answer scripts is denied to the examinee, the spirit of the Constitutional right to expression and information may be lost. The knowledge builder's the University's bid to perpetuate the draconian, elitist, one sided right to know and judge and rule without being open to question or accountable to the examinee cannot be encouraged. For a system to foster meaningful proliferation of knowledge it must it self be crystal clear to this core.
82. In the University's zeal to limit the scope of the request for information under the said At, one may get a whiff of its inertia; its innate resistance to change, almost a sublime refusal to perceive or acknowledge how all around it has moved along. History and tradition may be cherished and preserved. But evolution cannot be impeded, as it is a means for survival. If there is no infrastructure to received the change, the need to change cannot be negated, it is possible that public authorities as the university do not desire accountability as it is a demanding taskmaster and it is difficult to shrug off old habits. It is equally likely that while public examining bodies make an ostensible show of concern for the examiners, there is a realization that a more open scrutiny of evaluated answer script will require more care and caution than the low remuneration- and that is a notorious fact- to examiners can command.
83. Access to answer scripts may have the desirable side effect of ensuring that there is no loss of any of the papers. It is not unknown for answer scripts of Board and other examinations to have been found in dishonourable places that they should never have reached, and the awareness, that there may potentially be a request for furnishing every answer script may result in its better preservation. In a sense, he despair that has driver many a student to take his life in recent times may be addressed if students have access to their evaluated answer scripts.
84. The University's final shield is, formally, the Court. It seeks to tuck the answer scripts behind the apparently insurmountable wall of Supreme Court judgments. Apart from the fact that Section 8 (1)(b) of the said Act has to be read in the light of the overriding effect of the said Act sanctioned under Section 22, the argument on such score is as much a show of desperation as the floodgate theory.
85. There are two parts to Section 8(1)(b) of the Act: information that has been expressly forbidden to be published by any Court of Law or Tribunal or the disclosure of which may constitute contempt of Court. It is a disjunctive "or" after the word "tribunal". It is trite that an act may not be expressly forbidden by a Court and yet its commission would amount to contempt of Court. In the first limb of the clause, the expression "expressly forbidden"
14operates on the word "information". It necessarily implies that, that which is sought by way of a request has to be a matter that is expressly forbidden to be made available. The judicial embargo has to be explicit and a general observation may not be cited as a bar. An express prohibition has to be more specific than what the University brings by way of Supreme Court judgments, even if its best arguable case is taken. It does not appear that the University here has stressed much on the second arm of the clause. Even the latest Ayan Das case has not altogether forbidden answer scripts being offered for inspection by a Court to an examinee. The Suvankar case spoke of the ills of court - sanction interventions in the process of evaluation that may rob it of its timely finality. The Suvankar case deals with the consequence of information being furnished and cannot be seen as an impediment to the information in the form of answer scripts being made available. It is a matter that comes into play, as noticed above, in the zone beyond where the said Act operates.
86. The Supreme Court's reference in the Paritosh Bhupeshkumar Sheth case to the Audi alteram partelm rule not operating in the twilight zone of expectations has to be read in the background of the immediate list and the more general rule that was laid down. The challenge in that case was to two clauses of one of the regulations of the Secondary and Higher Secondary Council that barred reassessment and prohibited inspection of answer scripts. The restrictions were found to be reasonable. The matter was not considered in the light of the enactment, which is the subject matter of the present proceedings, even if it is accepted that the said Act only elucidates on the right originally guaranteed by the Constitution. There is no evil in a right born in the Constitution being enlarged by subsequent legislation nor any doubt as to the legislative competence to do so. If the right already existed under the Constitution, Parliament may widen its sweep and operation. A privilege granted under Part III of the Constitution can be legitimately magnified in keeping with the Constitutional vision in Part IV, abreast with the changing times when the said Act's avowed purpose is to bring about transparency and curb corruption.
87. Judicial discipline demands deference to precedents not only of the hierarchical superior but also of a forum of coordinate jurisdiction but it does not command a fawning obeisance in the deification of any precedent. As society progresses and aspirations rise, it shakes off the shackles that it invented in its infancy or adolescence. Marvels of yesterday become relics of today. If the Central Information Commission can rightfully aspire for a day when answer scripts would accompany the mark sheets, that there is no facility therefore today would not 15 lead to the natural words and import of the said Act to be constricted by any concern for the immediate hardship and inconvenience. The umbra of exemptions must be kept confined to the specific provisions in that regard and no penumbra of a further body of exceptions may be conjured up by any strained devise of construction. In a constitutional democracy, every limb and digit of governance is ultimately answerable to the government."
From the above it is clear the overwhelming balance of argument is clearly in favour of disclosure of the information sought by appellant Shri Veerabahu, which will, therefore, be provided to him within 15 days of the date of issue of this decision notice. Respondents have argued that they have no separate audiotapes for the examinees in interpretation of Tamil language, which number only 2. However, this information will be provided by application of the severability clause namely, 10 (1) under which only that part of the information need be disclosed which refers to the specific questions asked. Besides, because the information was not supplied within the timeframe specified by Section 7 (1) it will now, under Section 7 (6), be provided free of cost. . The Appeal is, thus allowed. There will be no cost.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 4-3-2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 4-3-2009 16