Calcutta High Court (Appellete Side)
For The vs Aditya Bandyopadhyay & Ors.) on 16 September, 2011
Author: Soumen Sen
Bench: Soumen Sen
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18 16.09.11 W. P. 3799 (W) of 2011
rrc
Mr. Subhasish Panchaal
Mr. Ramasish Mukherjee
......For the petitioner
Mr. Tapobrata Chakraborty
.......For the respdt. No. 2
Learned Counsel appearing on behalf of the
petitioner placed an application dated 17th August, 2011
filed by the petitioner praying for the supply of written
information and production of the answer script of the
present petitioner in the "Preliminary Screening
Examination for the Group - D Post". A copy of the same
may be kept on record. The said application is in addition
to the application already filed on December 7, 2010.
Mr. Tapobrata Chakraborty, Learned Counsel
appearing on behalf of the respondent nos. 2 and 3
submitted that the writ petitioner filed an application under the Rights To Information Act and in all fairness has referred to the latest decision of the Hon'ble Supreme Court passed on 9th August, 2011 Civil Appeal No. 6454 -:2:- of 2011 (Central Board of Sec. Education & Anr. Vs. Aditya Bandyopadhyay & Ors.).
In fact, a Learned Single Judge of this Hon'ble Court in W.P. No. 3799 of 2011 reported in AIR 2008 Cal. 118 (Pritam Rooj Vs. University of Calcutta & Ors.) after considering the provision of the Right to Information Act (22 of 2005) held that examinee must have access to the evaluated answer-script. His Lordship further held that if inspection of answer-script is denied to the examinee, the spirit of the Constitutional right to expression and information may be lost. The knowledge builds 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 itself be crystal clear to its core. The ratio of the decision can be found in Paragraphs 74, 80 and 81 of the said report which are reproduced hereinbelow: -
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"74. As a matter of principle, if answerscripts 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 answerscript may, theoretically, be sought and obtained. The University's first argument would then not hold good for a third party answerscript would be information beyond the knowledge of its seeker.
80. An examinee who has written hurried answers and solved problems under examination conditions sometimes several months before he gets the marksheet does not really "know" his answers. His memory of what he wrote will not be complete or accurate. He may not even have a clear recollection of what he has recorded in his answers. Alternatively, he may feel that he -:4:- 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 answerscript 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 answerscripts 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 itself be crystal clear to its core."-:5:-
The said matter was unsuccessfully taken to the Court of appeal and the Hon'ble Division Bench upheld the decision of the Learned Single Judge in a decision reported in AIR 2009 Cal. 97 (University of Cal & Ors. Vs. Pritam Rooj). Their Lordships in agreement with the decision rendered by the Learned Single Judge held as follows: -
"57. Quite apart, there is no merit in the submission that giving the examinees access to their answer scripts would not serve any public interest disclosure of assessed/evaluated answer scripts would definitely be conductive to improvement of quality of assessment/evaluation. Examiners appointed by the WBBSE or the University are not their employees. They are beyond the disciplinary control of the public authorities. if there be any incident warranting penal action, it is open to the public authority not to engage the errant examiner again but their accountability to the respective public body in case of improper or -:6:- unfair or negligent marking or provision for disciplining them has not bee shown. The examiners while assessing scripts are in the position of the Judges of the merits of the answers written. There is, however, limited scope of judging their performance. Without demeaning the examiners at all, it may be observed that if an examiner's action is made the subject of public scrutiny it might ensure assessments that are fairer, more reasonable, and absolutely free from arbitrariness and defects, must be accountable to the people and there is no reason as to why the examiners who also discharge public duty should not be made so accountable. This would indeed be a big step towards making all concerned associated with the examination process accountable to the examinees as well as the public authority.
58. There is also another significant aspect that needs to be noticed. As soon as information becomes accessible an informed -:7:- decision could be made by a potential litigant, initially dissatisfied with the marks awarded to him, before he takes a plunge to legal recourse. The time, money and effort which are necessarily associated with litigations could be lessened/avoided once greater transparency is assured. Similarly, greater transparency would mean correct, timely and legally sound decisions on the party f the public authorities and its functionaries and thereby the quality of governance, most likely, would improve.
59. Submissions made by Mr. Mitra that since regulations framed by the University and the WBBSE entitle an examinee to ask for review/reassessment and/or scrutiny of his answer scripts access thereto under the RTI Act would not serve any fruitful purpose is again without merit. It is common knowledge that while the entire answer script is reevaluated on merits in case of review, scrutiny is limited only to ascertain whether marks have been -:8:- awarded for each question answered and whether there is any totalling error or not. However, in terms of Regulation 14(2) of the said Regulations, review/re-examination cannot be asked for by an examinee successful in the examination. However, they are entitled only to apply for scrutiny. Even if there be apparent error in assessment that cannot be rectified on scrutiny in terms of the said Regulations, an examinee would not have any remedy and is likely to suffer for the rest of his life. In terms of regulations of the University, whether one be a successful or unsuccessful candidate, he cannot apply for review/re- examination of all individual papers but it is generally confined to two of the papers of the examinee's choice. Scrutiny is barred whether review/re-examination is permissible. Ordinarily, an examinee seeks review of answer scripts pertaining to those papers where marks awarded are low and not to his -:9:- satisfaction. The purpose of allowing review at times is frustrated because the examinee is unaware as to which of the papers he should apply for reviews. If access to each and every answer scripts is given to an examinee, that would only effectuate the right to apply for review and render it purposeful. Take the instance of an examinee who according to his estimation of the merits of the answers written by him expects at least 80% marks in all papers but on being furnished the mark sheet finds that he has secured marks as per his expectation in all but two papers in which he has been awarded 50% marks. Without having access to the answer scripts, the normal reaction would be to apply for review of those scripts in which he has been awarded 50% marks. On revaluation there may or may not be any change. However, in the process, the scripts on which he has been awarded 80% or more marks go unnoticed and even if there be
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any error in marking a question answered or error in totalling, the examinee would have to bear its consequence for the rest of his life. If all the answer scripts are made open to inspection and an error in a paper on which he has been awarded 80% marks is detected without detection of any error in the papers in which he has been awarded 50% marks, he would definitely have the option of applying for review of even a script on which he has been awarded 80% marks or more. These are the practical difficulties which one can overcome if applicability of the RTI Act to answer scripts or public examinations is recognised for assuring fairness and transparency. Disclosure, therefore, would very much be in public interest.
66. It is well recognised that while the letter of the law is the body, the sense and reason of the law is the soul and that it is not the words of the law but the spirit and internal
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sense of it that makes the law meaningful. While one can appreciate the contention of Mr. Mitra that an Act of Parliament cannot be construed to reduce it to rank absurdity, it is equally true that such meaning has to be given to the law as will carry out its object. Amplification of people's right to claim disclosure of information from a public authority and its corresponding obligation to respond and disclose information sans some which are exemptto make it more accountable are the pillars on which the RTI Act is structured to effectuate transparent governance. What Parliament in its wisdom thought it proper to introduce, the public authorities are up in arms and asking us to undo. When an exemption list has been provided by the Parliament as in Section 8(1) of the RTI Act, it is not open to anyone except the Parliament to enlarge or abridge such list. So long the statute remains as it is now, it has to be given full effect. Here
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we are concerned with conflicting view-points, one is that of the public authorities that applicability and operation of the RTI Act would render the system unworkable and the other of the information seekers to gain access to the answer scripts by reason of the right conferred by it. It is in these circumstances that the statute ought to be construed ut res magis valeat quam pereat by the Court we completely agree with the view expressed in Nokes v. Donscaster Amalgamated Collieries Ltd. reported in (1940) A C (Sic) to the effect that if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, a construction which would reduce the legislation to futility should be avoided and the bolder construction ought to be accepted based on the view that Parliament would legislate only for the purpose of bringing about an effective result."
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On a Special Leave Petition being filed in another set of matters concerning the same issue the Hon'ble Supreme Court affirmed the views expressed by the Learned Single Judge as also by the Division Bench and held that the order of the High Court directing the examining bodies to permit examinees to have inspection of their answer books is affirmed, subject to the clarifications regarding the scope of RTI Act of and the safeguard and conditions subject to "information" should be furnished. The necessary guidelines and clarifications are in Paragraphs 35 to 38 of the said judgment being Civil Appeal No. 6454 of 2011, which are reproduced hereinbelow: -
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act.
The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of 'information' and 'right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any
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information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. but where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. the reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise,
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provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.
36. Section 19(8) of RTI Act has entrusted the Central/State Information Commissions, with the power to require any public authority to take any such steps as may be necessary to secure the compliance with the provisions of the Act. apart from the generality of the said power, clause (a) of section 19(8) refers to six specific powers, to implement the provision of the Act.
Sub-clause (I) empowers a Commission to require the public authority to provide access to information if so requested in a particular 'form' (that is either as a document, micro film, compact disc, pendrive, etc.). This is to secure compliance with section 7(9) of the Act. Sub- clause (ii) empowers a Commission to require the public authority to appoint a Central Public
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Information Officer or State Public Information Officer. This is to secure compliance with section 5 of the Act. Sub-clause (iii) empowers the Commission to require a public authority to publish certain information or categories of information. This is to secure compliance with section 4(1) and (2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public authority to make necessary changes to its practices relating to the maintenance, management and destruction of the records. This is to secure compliance with clause (a) of section 4(1) of the Act. Sub-clause (v) empowers a Commission to require the public authority to increase the training for its officials on the right to information. This is to secure compliance with sections 5, 6 and 7 of the Act. Sub-clause
(vi) empowers a Commission to require the public authority to provide annual reports in regard to the compliance with clause (b) of section 4(1). This is to ensure compliance with
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the provisions of clause (b) of section 4(1) of the Act. The power under section 19(8) of the Act however does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with the provisions of the Act or to issue directions beyond the provisions of the Act. The power under section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of section 4(1) of the Act; and to ensure that the information enumerated in clauses (b) and (c) of sections 4(1) of the Act are published and disseminated, and are periodically updated as provided in sub-sections (3) and (4) of section 4 of the Act. If the 'information' enumerated in
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clause (b) of section 4(1) of the Act are effectively disseminated (by publications in print and on websites and other effective means), apart from providing transparency and accountability, citizens will be able to access relevant information and avoid unnecessary applications for information under the Act.
37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is
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information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony
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among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing', at the cost of their normal and regular duties."
38. In view of the foregoing, the order of the High Court directing the examining bodies to permit examinees to have inspection of their answer books is affirmed, subject to the clarifications regarding the scope of the RTI Act and the safeguards and conditions subject to which 'Information' should be furnished. The appeals are disposed of accordingly."
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In view of the aforesaid, the authorities concerned are directed to permit the petition to have inspection of answer-scripts within a period of three weeks from the date of communication of this order.
The writ application is thus disposed of on the aforesaid terms.
( SOUMEN SEN, J. )