Central Information Commission
Ms. Asma Anjum vs Aligarh Muslim University (Amu) on 23 September, 2008
CENTRAL INFORMATION COMMISSION
Complaint No.CIC/OK/C/2008/00759 dated 19.8.2008
Right to Information Act 2005 - Section 18
Appellant - Ms. Asma Anjum
Respondent - Aligarh Muslim University (AMU)
Facts:
By an application of 2.6.08 Ms. Shema of Nazir Ahmed Road, Aligarh Muslim University, Aligarh applied to the Registrar/CPIO, AMU seeking the following information:
"(1) Marks obtained by the lowest position holder in the list of candidate selected for MBBS 2008-2009, in Aligarh Muslim University.
(2) Marks obtained by the lowest position holder in the list of selected candidates for BDS 2008-2009, in Aligarh Muslim University.
(3) Marks obtained by the lowest position holder candidate in the chance memo of MBBS 2008-2009, in Aligarh Muslim University.
(4) Marks obtained by the lowest position holder candidate in the chance memo of BDS 2008-2009, in Aligarh Muslim University.
(5) Marks obtained by my daughter Roll No. 249946 with name and detail of subjects in entrance examination for MBBS/BDS 2008-2009, in Aligarh Muslim University."
This was followed by another application of 2.6.08 to the CPIO, AMU with the following request:
"1. Photocopy of both sides of OMR Sheet filed & submitted by my daughter Roll No. 249946 in her entrance examination of MBBS/BDS 2008 held on 26.5.2008 and result already declared last night.
2. Photocopy of the question booklet given to my daughter Roll No. 249946 during her entrance examination of MBBS/BDS 2008 held on 26.5.2008 and result declared last night.1
3. Correct Answers key to the question booklet given to my daughter Roll No. 249946 during her entrance examination of MBBS/BDS 2008 held on 26.5.2008 and result declared last night."
Again by an application of 20.6.08 Ms. Asma Anjum of Nazir Ahmed Road, AMU, Aligarh and daughter of Ms Shema applied to the Registrar / CPIO AMU seeking the following information:
"Photo copy of both sides of OMR filled and submitted by me (Name: Asma Anjum, Roll No. 249946) in my entrance examination of M.B.B.S./B.D.S. 2008 held on 26.5.08 and result already declared."
This was followed by a similar application of 21.6.08 in which information sought was as follows:
"Photocopies from both sides of all he pages of the question paper given to me (Name: Asma Anjum, Roll No. 249946) in my entrance examination of M.B.B.S. / B.D.S. 2008 held on 26.5.08 and result already declared."
To this she received a reply on 7.7.08 from CPIO and Asstt. Controller (Admissions), Office of Controller of Examinations. In this response the questions and answer with regard to the present RTI application is as follows:
Photocopy of both sides of OMR We cannot provide this filled and submitted by me document without approval of (Name: Asma Anjum, Roll No. the academic bodies of the 249946) in my entrance University. Your application is examination of M.B.B.S. / B.D.S. being sent to the Registrar 2008 held on 26.5.08 and result under Section 5 of the RTI already declared." Act.
This was repeated in the answer to the request regarding a copy of the question paper. Complainant's prayer before us is as follows:
"This information is very important to me as all my further planning with respect to Choice of career depends on this information.
I apprehend that some discrepancies in the computation of result or there are serious malpractices / malafide wrong doing 2 of the staff / officials of the admission section of the examination. Which is trying to conceal by withholding from disclosure. There have been serious lapses earlier too in the examination process conducted by AMU revealed in enquiries.
On these grounds and in the interest of justice, I request Commission to kindly consider hearing my appeal on urgent bases so that if the Commission decides to disclose the information, I may not be late to secure admission."
The complaint was heard on 19.9.08. The following are present:
Appellant Mrs. Shema (Mother of Complainant) Mr. Mohammad Anjum (Father of Complainant) Mr. Mayank Misra, Adv., Authorized Rep.
Mr. Divya Jyoti Jaipuriar, Adv., Authorized Rep. Mr. Tariq Islam, Authorised Rep.
Respondents at NIC Studio, Aligarh.
Mr. Wajid Ali, PIO Mr. Sarur Athar, F.A.A. Mr. Arifuddin Arif, CPIO Each of the representatives of complainant submitted letters of authorization; in the case of Dr. Tariq Islam dated 19.9.08 and in the case of Advocates Divya Jyoti and Prashant Bhushan / Mayank Misra undated. These have been brought on record.
On being asked as to whether complainant Ms. Asma Anjum had moved her first appeal in this matter, Dr. Tariq Islam, authorized representative submitted that the letter of 25.7.08 addressed to the Registrar, Aligarh Muslim University was in fact the first appeal. This letter, however, is a reminder to the application for information and seeks information regarding the following:
"i) Photocopy of both sides of OMR sheet filled and submitted by me in my said entrance examination for MBBS / BDS 2008-2009.3
ii) Photo copies from both sides of all pages of the question paper (question booklet) given to me in my said entrance examination for MBBS / BDS 2008.
iii) Copy of correct answers "key or its photocopy of the question paper given to me in my said entrance examination for MBBS / BDS 2008-2009."
After detailed discussion in the hearing, it is agreed that the information sought was that applied for in the applications of 20th & 21st June 2008 i.e. the following:
"Photocopies from both sides of all he pages of the question paper given to me (Name: Asma Anjum, Roll No. 249946) in my entrance examination of M.B.B.S. / B.D.S. 2008 held on 26.5.08 and result already declared."
"Photocopies from both sides of all he pages of the question paper given to me (Name: Asma Anjum, Roll No. 249946) in my entrance examination of M.B.B.S. / B.D.S. 2008 held on 26.5.08 and result already declared."
"Copy of correct answers "key or its photocopy of the question paper given to me (Roll No. 249946) in my competitive examination for entrance in MBBS / BDS 2008 held on 26.5.2008."
In this context Dr. Tariq Islam submitted that as per the decision of this Commission dated 23.4.07, we had held, with regard to OMR sheets as follows, in cases Complaint No. CIC/WB/C/2006/00223, Appeal Nos.
CIC/WB/A/2006/00469 & 00394, & Appeal Nos.
CIC/OK/A/2006/00266/00058/00066/00315 "In some of the cases before us, it was argued that there is no question of revealing the identity of an examiner when it is a computer based examination and OMR sheets are issued as in such cases, the assessment is done by the computer. Although the use of this technique is resorted to only where there are large numbers of examinees appearing, the disclosure of evaluated answer sheets in such cases is unlikely to render the system unworkable and as such the evaluated answer sheets in such cases will be disclosed and made available under the Right to Information Act unless the providing of such answer sheets would involve an infringement of copyright as provided for under Section 9 4 of the Right to Information Act. The same analogy which is applicable in most examinations will mutatis mutandis apply in case of an examination conducted with optical marking system."
Shri Mayank Misra, Learned Counsel for complainant further cited the decision of Shri Sanjib Banerjee, J. in W.P. NO. 22176 OF 2007 DT. 28.3.2008 (AIR 2008 Calcutta 118) Pritam Raj vs. University of Calcutta & Ors. In which our decision cited above has been specifically discussed. The Hon'ble High Court of Calcutta has ruled as follows:
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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 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 5 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 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 6 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 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:7
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.
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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.
68. 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 8 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) 9 "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 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.
1072. 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 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 11 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 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.
1278. 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.
81. 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 13 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" operates 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 14 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 answ4erscripts. 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 15 rightfully aspire for a day when answer scripts would accompany the mark sheets, that there is no facility therefore today would not 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."
The above ruling specifically pertains to the following ruling of this Information Commission which covers Universities as follows:
"In regard to public examinations conducted by institutions established by the Constitution like UPSC or institutions established by any enactment by the Parliament or Rules made thereunder like CBSE, Staff Selection Commission, Universities, etc. the function of which is mainly to conduct examinations and which have an established system as foolproof as that can be, and which, by their own rules or regulations prohibit disclosure of evaluated answer sheets or where the disclosure of evaluated answer sheets would result in rendering the system unworkable in practice and on the basis of the rationale followed by the Supreme Court in the above two cases, we would like to put at rest the matter of disclosure of answer sheets. We, therefore, decide that in such cases, a citizen cannot seek disclosure of the evaluated answer sheets under the RTI Act, 2005."
The sentence highlighted by us in the ruling above is of specific relevance in the present case, since this is a view that the Hon'ble High Court has held to be unjustified. Respondents on the other hand have cited our ruling in the case No. CIC/MA/C/2008/00221 of 9.6.08 Mohsin vs. Dep't of Education in which the Commission has held as follows:
"The Commission went through the application item-wise and decided as follows:
(i) The Applicant may be provided inspection of the answer sheet which at present was at the cluster level;
(ii) The Applicant will be allowed to inspect his answer sheet and also be provided with a photocopy if he so desires; and 16
(iii) The Appellant will be allowed to inspect the answer sheets of other colleagues of his but in such cases photocopies may not be provided.
However this ruling is in favour of disclosure. They have also submitted that although the Registrar is not the Appellate Authority, he has in fact forwarded the matter to the Dy. Controller (Admissions), which is the Appellate Authority, within the time limit specified. As already outlined by us in the analysis above, respondents have submitted that they have responded to the complainant in time, but that their systems at present do not allow for disclosure of OMR sheets as sought by complainant Ms. Asma Anjum.
DECISION NOTICE Our ruling in our decision of 23.4.07 has been quoted above. We have in this case already found that the disclosure of evaluated answer sheets in such cases as the present one is unlikely to render the system unworkable. We have in fact held that our decision in case of application of exemption in most examinations will mutatis mutandis apply in the case of an examination conducted with Optical Marking System. But the category in which we have placed the Universities would also fall within the category of exemption from disclosure under the above decision.
However, we may, at this stage, clarify that the decision above with regard to Universities was with reference to University examinations and not examinations governing admissions. In such cases, the principle that we have applied to the departmental examinations will also apply in this case since the 17 number of examinees is limited. In such cases, the following would be the pertinent rationale as per the above decision:
"the rationale of the judgments of the Supreme Court may not be applicable in their totality, as in arriving at their conclusions, the above judgments took into consideration various facts like the large number of candidates, the method and criteria of selection of examiners, existence of a fool proof system with proper checks and balances etc. Therefore, in respect of these 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. If that be so, the disclosure of the evaluated answer sheets could be denied but not otherwise."1 In the present case no argument has been brought before us to state that such a disclosure would render the system unworkable. The decision of this Commission cited by respondents is in itself in favour of disclosure. The plea taken is only that such disclosures have not yet been approved by the Academic Council. The Academic Council of a University falls squarely under the law insofar as the RTI Act is concerned. The information sought by appellant in the present case is, therefore, not exempt from disclosure, as per our ruling in the Complaint No. CIC/WB/C/2006/00223, Appeal Nos. CIC/WB/A/2006/00469 & 00394 and Appeal Nos. CIC/OK/A/2006/00266/00058/00066/00315 dated 23.4.2007.
In this matter since we find that the information is disclosable, we have not discussed the ruling of the Hon'ble High Court of Calcutta, in W.P. NO. 22176 of 2007, even though we have quoted from it extensively, since in our view it is not of direct bearing to the present complaint. The appeal is therefore allowed. The information sought in all three categories will be supplied to appellant Ms Anjum within ten working days of receipt of the Decision Notice 1 Emphasis added 18 Reserved in the hearing, this decision is announced in the open Court on 23rd September, 2008.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 23.9.2008 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 Shreyaskar) Joint Registrar 23.9.2008 19