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TMI Blog2011 (3) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... llenges 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] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. Adv. M. Ajay, the learned counsel for the SIC argued that the decisions rendered by this Court in Thalapalam I & II and S.N. College do not lay down any principle of restrictive approach in appreciating the concept of information for the purpose of the RTI Act. He said that this Court had only indicated in those decisions, the evolution of law in that regard. He further argued that the basic approach of the RTI Act is one that conceives maximum disclosure and minimum exemptions. This, he said, is discernible from the RTI Act as a whole and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible under that Act, which is held by or under the control of any public authority. It includes the right to access any information as stated in that provision. Every public authority stands with the obligations cast on it under Section 4 of that Act. The PSC does not, and cannot, have the contention that it is not a "public authority" as defined in Section 2(h) of the RTI Act. The obligations in terms of Section 4 of the Act are incurred by any authority or body or institution which would be a public authority in terms of Section 2(h) of that Act. Adverting to Section 8 of that Act, it can be seen that there is no institutional exception or exemption from the applicability of the provisions of the Act. The exemption from disclosure of information provided for by Section 8 of that Act is one based on the type or class of information. In the absence of any such exemption being granted to any class or type of information with any public authority, the obligations of that public authority in terms of the Act and the susceptibility of information with it, to access in terms of the provisions of the RTI Act cannot be avoided. Thus, PSC having been brought under the trappings of the RTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of the full connotation of a term. 7. In CST V. Union Medical Agency [(1981) 1 SCC 51], the Apex Court stated that it is a well-settled principle that when a word or phrase has been defined in the interpretation clause, prima facie, that definition governs whenever that word or phrase is used in the body of the statute. But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification - "unless there is anything repugnant in the subject or context", or "unless the context otherwise requires". Even in the absence of an express qualification to that effect, such a qualification is always implied. The meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely "unless the context otherwise requires". In view of this qualification, the court has not only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PSC does not stand. As already noticed, 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 he 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. 9. Be that as it may, we proceed to consider the submissions on behalf of the PSC that the concept of "information" in the RTI Act has to be restricted to such information as would be available in the realm of fundamental rights referable to Article 19(1)(a) pf the Constitution, having regard to the views expressed in Thalapalm I & II and S.N. College. Those three judgments and TREESA trace the evolution of the concept of information, as a necessary concomitant of the Fundamental right to Freedom of expression as contained in Article 19(1)(a) of the Constitution. Eligibility to access information, including the entitlement to have information f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstanding of the term "information", that too, ignoring the clear statutory provision defining the term; the legislature clearly stating that it means what it stated as the definition of the term "information" for the purpose of that Act. 12. Here, the law laid by the Apex Court in Paritosh was one expressing the confidence in the examination systems, holding the examiners and the institutions conducting the examinations in a pedestal higher than the right of the examinee or any other person to access information in that regard. In the absence of any permission then, like the RTI Act, holding the field, the Apex Court stated its views within the format of the Constitution to say, without the aid of any statute governing the field, that the right to information in relation to, and disclosure of answer scripts, may lead to request for revaluation and resultant choking off the systems which run the examinations. For one thing, after Paritosh was decided in 1984, and even followed subsequently, evolution of the thinking process of the legislators, academicians and civil society leaders and organizers had apparently pushed forward the larger salutary requirement that transparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as are in conformity with the Constitution. Permissiveness in terms of the Constitution may be one matter. But, more importantly, the People are entitled to have the legislators to think and bring in laws as may be necessary to effectuate the aspirations of the people referable to the Directive Principles of State Policy. May be, a citizen may not have a right to a judicial order seeking enforcement of any provision in Part IV of the Constitution. But, that does not provide answer for legislative failure to give effect to the aspirations of the People in terms of Part IV of the Constitution. It is also the law that the legislatures which are the constitutional authorities to make the enactments can change the course of the settled positions of law except in exceptional circumstances and subject to such restrictions as have been judicially recognised. Therefore, the law laid in Paritosh is not persuasive of any proposition that the provisions of the RTI Act have to be interpreted in terms of the rights of citizens, particularly, the examinees, as laid down in that case. The views expressed in that regard in TREESA and of the learned single Judge and Division Bench of the Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Doctor, a lawyer and a client etc. The term "fiduciary relationship" is not defined in the RTI Act. The learned single Judge, in TREESA, therefore rightly held that in the absence of any statutory definition, the general accepted legal connotation of that term could be adopted for deciding the issue. Reliance placed in TREESA on the definition of "fiduciary relationship" as stated in Black's Law Dictionary, seventh Edition, in Corpus Juris Secundum, the Dictionary of Law by L.B. Curzon, Stroud's Judicial Dictionary and the decision of this Court in Sunitha v. Ramesh [2010 (3) KLT 501] and the decisions in Secretary General, Supreme Court of India (supra), including the references made therein to different precedents and commentaries, are contextually apposite and applicable to the interpretation of the term "fiduciary relationship" in Section 8(1)(e) 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the conclusion of the evaluation of the answer scripts and the publication of the results. Therefore, it would not be in public interest to hold that there could be a continued secrecy even as regards the identity of the examiners. Access to such information, including as to the identity of the examiners, after the examination and evaluation processes are over, cannot be shied off under any law or avowed principle of privacy. 18. Proceeding to the next contention of the PSC that it holds a larger fiduciary public interest relationship to 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 should not be subjected to access as if they were information that would fall within the trappings of the RTI Act, it needs to be stated emphatically that purity and transparency of every public establishment is ensured to the satisfaction of the citizenry only by providing access to materials as would instil confidence. The RTI Act is a unique legislation. A laudable object it proceeds to achieve is empowerment of the citizenry w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;One of the issues that arise for consideration is the plea of the PSC that it having made rules for issuance of copies and dissemination of information to candidates; it ought not to be compelled to issue such information, also under the provisions of the RTI Act. This argument appears to be quite appealing because public institutions like PSC meet their expenses from public funds. Necessarily, it has to be the endeavour of all concerned to ensure that expenditure from such funds is confined to actual requirements. At the same time, the mode and provision for access to information under the provisions of the rules made by the PSC, as also, the cost factor, if any, involved, may be relevant considerations to ultimately conclude as to whether there could be any exclusion of access to such information under the provisions of the RTI Act and the rules framed thereunder, on the premise that alternate, efficacious and cost-friendly modes of access to information are otherwise provided for by the statutory rules and other provisions that govern the working of the public authority from which, information could be sought under the RTI Act. But, as the law now stands, there is no scope for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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