Central Information Commission
Rajeev Kumar vs Jamia Millia Islamia on 12 April, 2021
Author: Saroj Punhani
Bench: Saroj Punhani
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/JAMIS/A/2019/130212
Rajeev Kumar ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Jamia Millia Islamia,
RTI Cell, 2nd Floor, Mir Taqi
Mir Bldg., Maulana Mohammed Ali
Jauhar Marg, New Delhi - 110025 .... ितवादीगण /Respondent
Date of Hearing : 06/04/2021
Date of Decision : 12/04/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 26/03/2019
CPIO replied on : 14/04/2019
First appeal filed on : 10/05/2019
First Appellate Authority order : 24/05/2019
2nd Appeal/Complaint dated : 20/06/2019
Information soughtand background of the case:
The Appellant filed RTI application dated 26.03.2019 seeking information as under:1
1. "Provide a copy of Thesis titled 'Studies on some nitrogen fixing genes of Azotobacter vinelandi submitted/authored by Umesh Kumar Bageshwar which is catalogued in Dr. Zakir Husain Library ofJamia Millia Islamia University under Access No. 130906.
2. If the said Thesis is not available for circulation, provide the reason(s) for inaccessibility/restricted circulation of the said Thesis with a copy of instructions, if any restricting such circulation.
3. lf the said Thesis circulation is restricted, provide the guidelines/policy that govern restricted access in Dr. Zakir Husain Library ofJamia Millia Islamia University with a copy of categories of items that can be placed in restricted access."
The CPIO informed the appellant on 14.04.2019 that "the said thesis has been put in absolute safe custody of the Librarian by order of the competent authority of the university".
Being dissatisfied, the appellant filed a First Appeal dated 10.05.2019. FAA's order dated 24.05.2019 denied information under Section 8(1) (d) of the RTI Act, 2005.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Varun Sharma, Advocate through intra-video conference.
Respondent: Dr. Shakeb Ahmad Khan, Professor & CPIO present through intra- video conference.
The CPIO submitted that the thesis sought for by the Appellant pertains to the work of a third party i.e Umesh Kumar Bageshwar, who has categorically informed the University not to disclose the thesis without having a NDA signed with him by the concerned requestor. He further explained that the averred scholar has already got a US Patent and he intends to file for an Indian Patent too with respect to the research wok documented in the averred thesis and has also apprehended that a number of foreign companies are trying to gain unrestricted access to the said work for commercially exploiting it without his consent. He 2 further submitted that considering the commercial viability of the said thesis and the protected interest of the scholar and his guide, the FAA invoked Section 8(1)(d) of the RTI Act to deny the information to the Appellant. He emphasised on the point that the research scholar has informed the University that any request for access to the said thesis may be facilitated through him and if the Appellant so desires, he can get in touch with Umesh Kumar Bageshwar.
The Representative of the Appellant argued on the lines of the grounds of the Second Appeal, relevant extracts of which are reproduced hereunder:
"...the Appellant sought from the CPIO of JMI a copy of the thesis titled as 'studies on some nitrogen fixing genes of Azotobacter vinelandii" which was submitted by Mr. Umesh Kumar Bageshwar in pursuance of his research work which apparently was sponsored by a Government Department(hereinafter called as 'the Thesis'). Although a thesis deposited with a University is normally available for access and circulation, but despite several visits to the JMIU library and meeting with the concerned officers, the Appellant could not get access to the Thesis and therefore, aggrieved by the said circumstances, the Appellant filed the application under the RTI Act to seek a copy of the Thesis or the reason for not providing the said Thesis. The guidelines under which said copy could not be provided by the CPIO/JMIUwere also sought.
The Ld. CPIO did not mention any reason for not providingthe Thesis but only provided as to where and how the Thesis has been kept.
The findings of the First Appellate Authority are based on the incorrect assumption that the foreign companies are trying to commercially exploit the work without the consent of the stakeholders. The Appellant is a Master in pharmacy and is registered patent agent under the provisions of Indian Patents Act, 1970. The Appellant very well understands the importance of Intellectual Property Rights of the author of a literary or scientific work. The Appellant also understands that the commercial importance of the originalscientific works which once are published provide reference or starting pointfor further research in that field. The Appellant understands that use of the work for any commercial purposes, require the authorization of the author but reading and reference of that work for non-commercial purposes does not attract any violation of the author's right and rather it serves the very purpose of such publication. Therefore, it is submitted that the assumption of the First Appellate Authority that Appellant 3 is seeking a copy of the Thesis, which is a purely research document, for any commercial purpose which violates theIntellectual Property Rights of the author, is wrong, incorrect and bad in law.
XXX The Ld. CPIO and First Appellate Authority failed to appreciate that the Thesis submitted with JMIU is an academic document, which has to be made accessible to public. A Ph.D. thesis is always open to public scrutinyfor any plagiarism etc. and the conduct of JMIU is arbitrary' The Ld. cPIo and First Appellate Authority have wrongly attached commercial value to an academic document by contending that the Thesis has gained immense commercial importance. Any commercial value or importance cannot be attached to the Thesis as the same is only an academic research document, which has to be mandatorily published. Moreover, a Ph.D. thesis does not grant any monopoly in respect of the subject matter covered there under. The only monopoly granted under law for commercial exploitation by a stakeholder on any invention is under the Patents Act' 1970and the Thesis is not a subject matter of any patent in India. On the contrary the Thesis, by virtue of its publication cannot be granted a patent at all. Infact, the Thesis has already been catalogued and the same cannot bewithdrawn from circulation subsequently.
The Ld. CPIO and First Appellate Authority have wrongly held that the disclosure of the Thesis would harm the competitive position of the stakeholders. The First Appellate Authority has failed to provide as to who are the stakeholders. It is respectfully submitted that if the researcher whohas acquired the Ph.D. degree based on the Thesis is considered as a stakeholder, he cannot be regarded as a commercial competitor whose commercial position could be harmed upon disclosure of the subject information. In case JMIU is considered as a stakeholder, the said university, which is also not a commercial competitor, has to mandatorily publish theThesis as explained hereinafter.
The Ld. PIO and First Appellate Authority failed to appreciate that under section 11(g) of the Ordinance 9(IX) of JMIU, each research scholar of JMIU is required to publish at least one research paper based on his/her Ph.D. research work in a UGC approved journal and present at least two research papers in a national/international conference/workshop. Thus, the thesis is not a confidential 4 document as research papers of the scholars of JMIU are inevitably required to be published under the JMIU Ordinance and thus fall under the public domain. Accordingly, there is no reason for refusing to provide a copy of the thesis to the Appellant...
The Ld. PIO and First Appellate Authority also failed to appreciate that under Section 13(b) of the ordinance 9(IX) of JMIU two hard-bound copies and two soft copies of the thesis along with two soft copies of the synopsis of the thesis will have to be submitted to the Controller of Examinations and one of the soft copies of the thesis will have to be submitted by the controller of Examinations to the INFLIBNET depository and another for posting on the University's portal. It is respectfully submitted that no exceptions to Section 13 have been provided in the Ordinance 9(IX) of JMIU. Since the thesis has to be provided on the University's portal as per Section 13 of Ordinance 9(IX), even though not yet provided, the same falls under the definition of information under Section 2(f) of the RTI Act,2005. Thus, the Ld. PIO made grave error in not providing the said information i.e copy of the Thesis which has to be even otherwise disclosed on the University's portal.
The Ld. PIO and First Appellate Authority failed to appreciate the Thesis that the thesis has to be made available in the public domain. The availability of the thesis on the University's portal or through any other means may be required for reasons including academic and reference purposes and particularly to advance research in the same field by other scholars, scientists and others interested in the subject matter of the Thesis. The concealment/non-disclosure of the Thesis is not provided in any of the regulations of JMI but is in fact detrimental to further research on the subject and dissemination of knowledge to the society at large which knowledge is developed by using public resources. The research scholar of JMIU who submitted the said Thesis conducted the required research using public resources. Therefore, the information based on records is meant to disclosed under the RTI Act, 2005"
In furtherance of these grounds, the Representative of the Appellant stated that having a US Patent does not bar the disclosure of the averred thesis as there is no protection ascribed to it under any law for the time being in force in India vis-à-vis the mandatory requirement of publishing it under the relevant University Ordinances. He further remarked that even if the protection of copyrights is ascribed to it, the scholar has recourse to the law if he believes that his copyrights 5 has been infringed but having signed up for a Ph.D with a public university, where award of degree is subject to the submission of the thesis, the research scholar cannot claim confidentiality over the same or impose arbitrary conditions like that of entering into a NDA. He added that as such the Copyrights Act provides for fair use exceptions and does not give monopoly over the knowledge but only lends a restricted protection against illegal commercial reproduction of the original work. He also emphasised that absolute denial to disclose the research work is in fact an antithesis to the IPR laws because fear of scrutiny ensures against plagiarism based commercial exploitations and also providing access for reference work allows healthy literary review and critical analysis thus aiding in furthering the research and even for preparing counter thesis. The representative of the Appellant also hinged upon certain aspects of the Patent Law to allege that the suppositional idea to be patented by the scholar may have lost 'novelty' upon discussing the research idea with his Guide or similar persons of interest and therefore apprehending an impending Patent filing for denying the information is not appropriate.
The CPIO asserted that the submission of the thesis and eventual award of degree precedes necessary plagiarism checks by the University administration as per the extant rules. He further clarified that concededly the thesis of scholars is catalogued and kept in their library, wherefrom any student can access the same and even take copy of extracts, references etc. but the complete copy of the thesis is not provisioned to third parties to protect the IPR and/or copyrights of the concerned scholar.
Upon a query from the Commission, the CPIO admitted that the thesis sought for by the Appellant is however not available for even reference work as on date due to the request of the averred scholar apprehending commercial exploitation by foreign companies and he reiterated that as desired by the scholar, the Appellant or any other party interested in the said thesis can contact him through the University and have a NDA executed, however, under RTI Act, Section 8(1)(d) bars the disclosure of the said information.
The representative of the Appellant lastly insisted that the said research scholar is wary of the fact that disclosure of the thesis will prove the plagiarism evident therein and therefore undermine his chances of getting a Patent in India 6 Decision The Commission having perused the instant grounds of Appeal and having heard the parties at length observes that the Appellant has primarily harped on the relevant University Ordinances to insist that the thesis of the averred research scholar ought to be disclosed in the public domain as once the scholar submits the thesis to the University, it ceases to be the property of the scholar and hence the consent or dissent of the said scholar is not consequential to the disclosure of the thesis in the public domain. In this regard, the Appellant has emphasised on the aspects of transparency; fair use; research advancement among other reasons to accord a larger public interest in the disclosure of the thesis.
While, the CPIO has insisted on an unambiguous argument that having received the request from the concerned scholar to not disclose the thesis paper without having a NDA signed with him for the reasons of commercial viability or because of an impending patent filing in India, the information is exempted under Section 8(1)(d) of the RTI Act.
In the considered view of the Commission, the arguments of the representative of the Appellant questioning the originality of the said thesis or challenging the Patent filing on the grounds that the idea invested in the thesis is no more 'novel' are more in the nature of self-serving arguments or at best calls for intervention of the University administration to assess if any procedural or ethical lacunae is pertinent in the award of degree based on the averred thesis in the context of the serious allegations of the Appellant.
From the standpoint of the RTI Act, the reasons tendered by the FAA in his order which was further relied upon by the CPIO during the hearing ably justifies the applicability of Section 8(1)(d) of the RTI Act which provides as under:
"8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,
(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 information;..."
7Moreover, the Appellant may note that merely because University Ordinance prescribes publication of the thesis does not take away the protection available to the disclosure of the same under the RTI Act if exemption of Section 8 and/or 9 therein is applied and justified. The thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case. As for the larger public interest argued by the representative of the Appellant, the Commission is not inclined to accept the same in the absence of any material on record to even remotely substantiate the serious allegations of plagiarism in the face of a US patent said to have been already procured by the third party, which fact was also not disputed by the representative of the Appellant. In fact, the arguments tendered by the representative of the Appellant to this effect during the hearing appeared to be rather laboured and feeble.
Having observed as above, the Commission although upholds the denial of the information on point no.1 of the RTI Application under Section 8(1)(d) of the RTI Act as espoused by the FAA, however, the order of the FAA is not appropriate for points no.2 & 3 of the RTI Application. The Appellant has sought for reasons and clarifications through these points which in principle do not conform to Section 2(f) of the RTI Act but warranted at least a specific reply by the CPIO & FAA to this effect.
Nonetheless, adverting to the peculiarity of the instant case in the context of the serious allegations of the Appellant and the admitted stance of the CPIO that the third party has intimated that the thesis be withheld from public disclosure or publication, the Commission deems it expedient to harmonise the conflicting interests of the concerned parties herein in keeping with the letter and spirit of the RTI Act.
In doing so, for point no. 2 of the RTI Application, the CPIO is directed to provide a copy of the relevant and available instructions received from the said third party requesting for complete confidentiality of the said thesis or in the absence of said record, any other corresponding document as available should be provided to the Appellant. Similarly, for point no.3 of the RTI Application, the CPIO is directed to provide the relevant and available guidelines governing restricted access of thesis submitted by the scholars of the University to the Appellant. In the event that, no 8 relevant recorded form of information is available for one or both of points 2 & 3 of the RTI Application, a categorical statement to this effect shall be stated in the CPIO's reply.
The available information as directed above should be provided free of cost to the Appellant within 15 days from the date of receipt of this order by the CPIO under due intimation to the Commission.
Further, adverting to the submission of the CPIO regarding facilitating access to the thesis subject to signing of NDA in consultation with the concerned research scholar, the Appellant is at liberty to approach the University for the said purpose. In the event that a request to this effect is received from the Appellant, the CPIO shall ensure due assistance in getting him in touch with the said research scholar.
A copy of this order is further marked to the Vice Chancellor, JMI and to the Chairman, UGC to note that the instant case impliedly suggests that despite relevant University Ordinances stipulating access permission to the submitted thesis of scholars, the prerogative lies with the University to withhold one such thesis in absolute confidentiality on the grounds of commercial viability and market competition. If that be the message that the Respondent University is conveying, it may be assessed if the said prerogative of the University is backed by any UGC Regulations and if the same is conducive to the interests of the research community at large.
In the same regard, Vice Chancellor, JMI may also consider placing in public domain any exceptions to the rule of granting access to submitted thesis of the scholars in order to dispel the apprehensions of other fellow research scholars or the general public at large and to avoid casting aspersions on the work of the scholars.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) 9 Authenticated true copy (अिभ मािणतस!यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / Copy to:
Vice Chancellor Office of the Vice Chancellor, Jamia Millia Islamia, New Delhi - 110025
--(For necessary action) Chairman, University Grants Commission Bahadur Shah Zafar Marg, New Delhi - 110002
--(For necessary action) 10