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2.The PSC challenges different decisions of the State Information Commission, "SIC", for short, overruling its stand that information with the PSC cannot be accessed under the RTI Act and that the answer scripts, marks awarded, including interview marks and other details touching the process of examination and interview cannot be made available, except to the extent provisions are made for such access by the regulations and decisions of the PSC.

3.In support of the writ petitions, Adv. Alexander Thomas, the learned standing counsel for the PSC argued that the substantive source of the right to information is the constitutional provision in Article 19(1)(a) and hence, what is not available as part of that right cannot be treated as available under the RTI Act. He argued that RTI Act applies only to the extent of the concept of "information" as deducible from Article 19(1)(a) of the Constitution and not beyond. He, therefore, said that if a particular information would fall beyond the pale of Article 19(1)(a), the same would not be accessible under the RTI Act. Making reference to the decisions of this Court in Thalapalam Service Co-operative Bank Ltd. v. Union of India[2009(2) KLT 507] (Thalapalam I), Thalapalam Service Co-operative Bank Ltd. v. Union of India[2009(3) KLT 1001] (Thalapalam II) and S.N.College v. State of Kerala[2010(1) KLT 691](S.N.College), it was argued that it has been held in those cases that the concept of information under RTI Act is with reference to Article 19(1)(a) of the Constitution. He accordingly argued that beyond that, the provisions of the RTI Act cannot be extended. He said that this restrictive approach has to be applied since it has been held by the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth[(1984)4 SCC 27], hereinafter, Paritosh, that in terms of the Constitution, there is no right to information, including as regards answer scripts. He said that the law laid by the Apex Court in that regard is also that if such right is recognized, it would lead to acceding to a further right to demand revaluation and such situation would necessarily lead to uncertainty, lack of finality and administrative inconvenience to the examining bodies. He also pointed out that even in terms of the Constitution, principles of secrecy and public interest immunity would stand to advise that information in relation to PSC, in particular, matters relating to examinations, ought not to be released as information, invoking the provisions of the RTI Act. He also made reference to Secy., W.B.Council of Higher Secondary Education v. Ayan Das[(2007)8 SCC 242], Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission[(2004)6 SCC 714], Board of Secondary Education v. Pravas Ranjan Panda[(2004) 13 SCC 383], H.P.Public Service Commission v Mukesh Thakur[(2010)6 SCC 759], Sidhik v. State of Kerala[2010(1) KLT 113] and the decision of the Apex Court in Kerala Public Service Commission v. Narayanan Kunchumbidukka [Civil Appeal No.461 of 2008][Ext.P6 in WP(C). 33718/2010], to argue that the said decisions categorically lay down that access to information in relation to examination materials is not permissible except to the extent where the examining body permits such access on the basis of regulations or decisions that it has taken for the management of affairs in relation to examinations. Adv. Alexander Thomas further argued that the Commission has a fiduciary role qua the society in public interest and it holds and acts in trust; in public interest; in a fiduciary capacity qua the public at large. He said that the term "fiduciary capacity" in Section 8 of the RTI Act needs to be so understood. He argued that information regarding examiners and others involved in the process has to be maintained in secrecy. Otherwise, it would lead to different situations which would be susceptible even to corruption. Dilating on the concept of fiduciary status, he argued that the restricted concept of fiduciary relations as understood in private law is not applicable and the concept of fiduciary relations in the context of public trust and public involvement should be a larger concept.

8.The question of contextual construction of any particular provision of the RTI Act and the consequential excusing of the PSC from any such provision, by using the tool "unless the context otherwise requires" in the opening part of section 2 of that Act, do not arise. This is because, to a large extent, the plea of the PSC is that the RTI Act does not apply to all information held by it or under its control. The argument advanced is that there has to be a selective classification of the information held by it or under its control. The plea is that while information relating to its governance and administration may be available for access under the RTI Act, information, including materials relating to examinations, are not accessible information since they do not relate to governance or administration of PSC. The argument is not that the application of the definition of the term "information", as contained in the dictionary to the statute, interpreting any particular provision of the RTI Act, would lead to anomalous and absurd results. In its substance, the plea of PSC is that the definition of the term " information" in section 2 of the RTI Act should be understood differently; not in relation to the interpretation or application of any particular provision of that Act; but while applying the provisions of that Act to the PSC. Fundamentally, this contention of PSC does not stand. As already noticed, PSC cannot but fall under the definition of "public authority" in the RTI Act. Having regard to the format of the definition of that term in the RTI Act, there is no intelligible differentia discernible in the context of that Act, to cull out any differential treatment for the PSC or information held by it or under its control. On the face of the clear provisions of the RTI Act, as they now stand, there is no way for judicial intervention to refuse access to information by or under the control of PSC.

13.For the foregoing reasons, the argument extended by the PSC that the concept of "information" for the purpose of the RTI Act has to be restricted to such information as may fall within the concept of fundamental right to information as part of the fundamental right to freedom of speech and expression referable to Article 19 (1)

(a), is unsustainable in law and is hereby repelled.

14.Now, on to the plea of the PSC that it holds a fiduciary status. Three issues arise in this context. Firstly, the PSC claims that there is a fiduciary relationship between it and those being subjected to examination for the purpose of selection to public service. Secondly, it claims that there is a fiduciary relationship between it and the examiners and as a consequence, it is eligible to claim protection from disclosure, except with the sanction of the competent authority, as regards the identity of the examiners as also the materials that were subjected to the examination. Thirdly, rather, most importantly, it contends that the PSC holds a larger fiduciary public interest relationship with the society at large in relation to the maintenance of purity, transparency and the credibility of the procedure of selection to public service and therefore materials in relation to such selection procedures cannot be subjected to access as if they were information that would fall within the trappings of the RTI Act. We may hasten to add that the learned counsel for the PSC, in the course of his erudite submissions, made a clear distinction between information relatable to the PSC as regards its governance and those relatable to the examinations conducted by it. He said that in matters relating to governance, there may not be any privilege or protection that the PSC could claim; but that, matters relating to examination deserve to be taken out of the purview of the RTI Act.

16.What, if any, is the fiduciary relationship of the PSC qua the examinees? Performance audit of constitutional institutions would only strengthen the confidence of the citizenry in such institutions. The PSC is a constitutional institution. To stand above board, is one of its own prime requirements. There is nothing that should deter disclosure of the contents of the materials that the examinees provide as part of their performance in the competition for being selected to public service. The confidence that may be reposed by the examinees in the institution of the PSC does not inspire the acceptability of a fiduciary relationship that should kindle the exclusion of information in relation to the evaluation or other details relating to the examination. Once the evaluation is over and results are declared, no more secrecy is called for. Dissemination of such information would only add to the credibility of the PSC, in the constitutional conspectus in which it is placed. A particular examinee would therefore be entitled to access to information in relation to that person's answer scripts. As regards others, information in relation to answer scripts may fall within the pale of "third party information"