IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 WP(C).No. 33718 of 2010(L) --------------------------------------- PETITIONER(S): ----------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY PATTOM,THIRUVANANTHAPURAM. 2. THE STATE PUBLIC INFORMATION OFFICER & JOINT SECRETARY, KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE,PATTOM,THIRUVANANTHAPURAM. 3. APPELLATE AUTHORITY & ADDITIONAL SECRETARY (RECRUITMENT) KERALA PUBLIC SERVICE COMMISSION PATTOM,THIRUVANANTHAPURAM. BY ADV. SRI.ALEXANDER THOMAS, SC, KPSC RESPONDENT(S): -------------------------- 1. STATE INFORMATION COMMISSION,KERALA REPRESENTED BY ITS SECRETARY PUNNAN ROAD, THIRUVANANTHAPURAM-695 039. 2. ASHA BHASKAR EDAVANA HOUSE, CHOMBALA,KOZHIKODE 673 308. R1 ADV. SRI.M.AJAY, SC, STATE INFORMATION COMMISSION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2011, ALONG WITH WPC. NO.34585 OF 2007 AND CONNECTED CASES THE COURT ON 09/03/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.33718/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATION DTD. 30.11.2009 SUBMITTED BY THE R-2 TO THE 2ND PETITIONER. P2:- COPY OF THE REPLY DTD. 19.12.2009 GIVEN BY THE 2ND PETITIONER. P3:- COPY OF THE IST APPELLATE ORDER DTD. 14.1.2010. P4:- COPY OF THE STATEMENT DTD. 6.7.2010 FILED BEFORE R-1. P5:- COPY OF THE 2ND APPELLATE ORDER DT. 17.7.2010 IN APPENDIX. NO.528(2)/ 2010/SIC. P6:- COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT IN CIVIL APPEAL NO.461/2008. P7:- COPY OF THE JUDGMENT IN WPC. 9445/2009. P8:- COPY OF THE JUDGMENT IN WPC. 33443/07. P9:- COPY OF THE JUDGMENT IN WPC. 33368/07. P10:- COPY OF THE APPELLATE DECISION DTD. 23.4.2007 OF THE CENTRAL INFORMATION COMMISSION. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.33718/2010-L, 5755/2007-I, 12297/2007-L, 3585/2008-B, 15363/2008-D, 15424/2008-J, 22386/2008-M, 6177/2010-V, 9250/2010-E, 25779/2010-V, 23839/2010-D, 32772/2010-V, 12032/2009-Y, 12160/2009-L, 34585/2007-P, 33620/2009-V, 35723/2008-C, 22398/2008-N, 15426/2008-J, 22230/2007-U, 6355/2010-T, 22231/2007-V, 3577/2008-A, 12312/2007-N, 23458/2008-P, 37772/2008-V, 11876/2009-D, 23539/2008-B, 11687/2009-E, 33616/2009-V, 11042/2010-E, 2207/2008-K, 10971/2010-V, 5978/2010-V, 35840/2008-N & 5622/2007-T = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of March, 2011. Judgment “CR” Thottathil B.Radhakrishnan, J. 1.These writ petitions raise the question of applicability of the Right to Information Act, 2005, hereinafter referred to as the “RTI Act” to the Kerala Public Service Commission, hereinafter, “PSC”, for short. These matters are WPC33718/10 & con.cases -: 2 :- referred to the Division Bench noticing an apparent conflict between the decisions of this Court in Public Information Officer, University of Calicut and another v. State Information Commission[2010(1) KHC 2], for short, “UNICAL”, and Treesa Irish v. Central Public Information Officer[2010(3) KLT 965], “TREESA”, for short. 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 WPC33718/10 & con.cases -: 3 :- 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 WPC33718/10 & con.cases -: 4 :- 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], WPC33718/10 & con.cases -: 5 :- 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 WPC33718/10 & con.cases -: 6 :- 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 also on the basis of its Preamble and the Statement of Objects and WPC33718/10 & con.cases -: 7 :- Reasons. He made reference to the decisions of the Delhi High Court in ICAI v. Central Information Commissioner & another[W.P(C). No.8529 of 2009], Allahabad High Court in Public Information Officer v. State Information Commission, U.P. and others[W.P.No.3262 (MB) of 2008], Pritam Rooj v. University of Calcutta[AIR 2008 Cal.118], University of Calcutta v. Pritam Rooj[AIR 2009 Cal.97], The Tamil Nadu Public Service Commission v. The Tamil Nadu Information Commission[W.P.No.34630/2007 & connected cases], D.Parisuthanathan v. Public Information Officer/Registrar General, High Court, Madras [W.P.No.1285/2009 & connected cases], Tamil Nadu Road Development Company Limited v. Tamil Nadu Information Commissioner[W.A.No.811/2008 & M.P.No.1/2008] and Union Public Service Commission v. Shiv Shambhu[2008-ILR Delhi 17- 2016 :2008(TLS) 141374] and Secretary General, Supreme Court of India v. Subhash Chandra Agarwal[LPA 501/2009], to argue that the provision for information in terms of the RTI Act has to be understood on the basis of the WPC33718/10 & con.cases -: 8 :- definition of “information” in that Act. He further argued that the validity of the RTI Act not being under challenge, there is no reason to tinker with the specific definition given by the legislature to the term “information” in the RTI Act. He argued that the RTI Act is a self contained Code and it should be taken that the Parliament were aware of the laws as laid by the Apex Court while it made the RTI Act and if it intended to make any departure in the case of examinations etc., such departure or exception would have necessarily found expression in the Act itself. He pointed out that the fiduciary concept is not available as a plea for the PSC to deny information under the RTI Act and the fiduciary relationship as projected by the PSC, has no application because the intention of RTI Act is to provide information, with the ultimate goal to ensure purity and transparency in matters relating to governance and selection. He said that, by all means, PSC cannot but be treated as part of the process of governance of the State. WPC33718/10 & con.cases -: 9 :- 5.Section 3 of the RTI Act provides that, subject to the provisions of that Act, all citizens shall have the right to information. That right is defined in section 2(j) of the RTI Act. It is the right to information, accessible 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 WPC33718/10 & con.cases -: 10 :- 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 Act, it is not conferred with the immunity as an institution, from the obligations, liabilities and exposure of information held by or under its control, in terms of that Act. There is also no provision in section 8 of that Act classifying any information as eligible for exemption from disclosure. 6.Section 2 of the RTI Act is the dictionary of that legislation. It contains “Definitions”. Clause (f) thereof says that “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and WPC33718/10 & con.cases -: 11 :- information relating to any private body which can be accessed by a public authority under any other law for the time being in force. The Honourable Supreme Court stated in Hariprasad Shivshanker Shukla v. A.D.Divelkar[AIR 1957 SC 121], that “There is no doubt that when the Act itself provides a dictionary for the words used, we must look into that dictionary first for an interpretation of the words used in the statute. We are not concerned with any presumed intention of the legislature; our task is to get at the intention as expressed in the statute.” When the statutory provision defining a particular term says that the said term shall mean what is stated in that definition clause, it shall mean only that; nothing more, nothing less; for the purpose of the statute which carries that definition. When a statute says that a word or phrase shall “mean” — not merely that it shall “include” — certain things or acts, the definition is a hard- and-fast one, and no other meaning can be assigned to the expression than the one put down in definition. A definition is an explicit WPC33718/10 & con.cases -: 12 :- statement of the full connotation of a term. – See Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer[(1990) 3 SCC 682] and P. Kasilingam v. P.S.G.College of Technology[1995 Supp (2) SCC 348] rendered relying on Gough v. Gough [(1891) 2 QB 665: 65 LT 110]. As noticed in S.N.College, the Legislature has the power to define a word even artificially. When a statute says that a word or phrase shall “mean” a particular thing, certain things or acts, that definition is a hard-and-fast one and no other meaning can be assigned to the expression than is put down in that definition. That definition is an explicit statement 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 WPC33718/10 & con.cases -: 13 :- 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 look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section. But where there is no WPC33718/10 & con.cases -: 14 :- obscurity in the language of the section, there is no scope for the application of the rule ex visceribus actus. This rule is never allowed to alter the meaning of what is of itself clear and explicit. As observed in Pandey & Co. Builders (P) Ltd. v. State of Bihar[(2007) 1 SCC 467], in view of the provision “unless the context otherwise requires” in the definition clause, one may not stick to the definition, when the provision in the interpretation clause shall lead to anomalous and absurd results. Such course shall not be resorted to otherwise. The court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. 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 WPC33718/10 & con.cases -: 15 :- 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 WPC33718/10 & con.cases -: 16 :- 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. 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) of the Constitution, having regard to the views expressed in Thalapalam I & II and S.N.College. WPC33718/10 & con.cases -: 17 :- 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 for the purpose of meaningful fulfillment of the fundamental right to freedom of expression, is part of the core theme of those precedents rendered making reference to the legendary decisions of the Apex Court in State of Rajasthan v. Raj Narain[AIR 1975 SC 865] and S.P.Gupta v. Union of India[1981(Supp.)SCC 87]. Those precedents do not, in any manner, abridge the ever expanding horizons of the fundamental right to freedom of expression as enshrined in Article 19(1)(a). Nor do those judgments act as precedents for any proposition that the legislatures have to restrict the concept of “information” for the purpose of providing access, with the aid of a statutory instrument, in the form of the RTI Act. All that has been said in those judgments is that the ever WPC33718/10 & con.cases -: 18 :- available fundamental right to information as part of the fundamental right to freedom of speech and expression has found statutory recognition in the form of RTI Act, as a successor to the Freedom of Information Act, 2002. Those decisions are not precedents laying down any definition for the term “information” for the purpose of the RTI Act. 10.To make a statute, including by laying down a statutory definition, even artificial, for any particular term used in that statue, is the exclusive function of the legislature. If it does so, that cannot be abridged by any situational or explanatory reference made to the constitutional provisions, in any precedents laid by courts. When the legislature undertakes the process of making a piece of statute law, it has necessarily to be assumed that it is aware of the interpretations given by the courts, at least the Supreme Court and the High Courts, to the different terms or concepts that become subject of that legislation. When the legislature makes a WPC33718/10 & con.cases -: 19 :- statute, including by providing a specific definition for a term; may be, even artificial, deviating from the common and accepted meaning of that particular term; it has to be taken that the legislature has consciously, deliberately and after due consideration, put that provision, including the definition. Judicial determination can thereafter be only as regards the constitutionality of that provision. 11.In the absence of any way to challenge validity of the provisions of the RTI Act, it is impermissible for the PSC to contend that in the application of that Act to it, there has to be a restrictive understanding 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 WPC33718/10 & con.cases -: 20 :- 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 transparency has to outweigh all demands for secrecy, except of course, in relation to areas of national and other such interests which require continued secrecy and exemption from any law providing access to information. This WPC33718/10 & con.cases -: 21 :- evolution of the People's thinking found acceptance with the Legislature. This is how the RTI Act came into being, making a specific provision in the form of Section 8 granting exemptions from the provisions of the RTI Act. We, therefore, uphold the views in TREESA and agree with the Division Bench and the single Judge of the Calcutta High Court in Pritam Rooj pointing out the evolution of the society leading to the RTI Act and the requirement of the Universities to fall in line with the provisions contained in that Act. The constitutional values have to be identified and effectuated as "We, the People of India" marches. The concepts which had held field, even for fairly long, have later dwinkled with the exploring minds of the Indian people. As noted by Krishna Iyer, J. in Authorised Officer v. S.Naganatha Ayyar[(1979) 3 SCC 466], though the Judges are constitutional invigilators and statutory interpretors, they are also responsive and responsible to Part IV of the Constitution. The Judges have, with the passage of time, contributed to the process of evolution WPC33718/10 & con.cases -: 22 :- of the constitutional law to ultimately lead the society to affirmatively stand by the equality doctrine which is a seminal principle underlying the Constitution. To indicate an example of the process of evolution of thinking in Constitutional law, we may indicate the