IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 6532 of 2006(C) ------------------------- PETITIONER(S): --------------- TREESA IRISH, W/O.MILTON LOPEZ, AGED 48 YEARS, POSTMAN, ERNAKULAM NORTH POST OFFICE, KOCHI 682 018, RESIDING AT KADVATHUPARAMBIL, VALLARPADOM P.O. COCHIN 682 031. BY ADV. SRI.M.R.HARIRAJ RESPONDENT(S): --------------- 1. THE CENTRAL PUBLIC INFORMATION OFFICER, THE DIRECTOR, POSTAL SERVICES (HEAD QUARTERS), KERALA POSTAL CIRCLE, DEPARTMENT OF POSTS, KERALA CIRCLE, THIRUVANANTHAPURAM 695 022. 2. THE APPELLATE AUTHORITY UNDER RIGHT TO INFORMATION ACT, (MEMBER PERSONNEL), POSTAL SERVICES BOARD), DEPARTMENT OF POST, MINISTRYOF COMMUNICATIONA ND IT, DAK BHAVAN, NEW DELHI. 3. THE CENTRAL INFORMATION COMMISSION, REPRESENTED BY ITS REGISTRAR, BLOCK NO.4. VITH FLOOR, OLD JNU CAMPUS, NEW DELHI 110M 067. 4. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLOGY, NEW DELHI. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT, ON 30/08/2010, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 6532/2006. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF MARK LIST DT. 13-10-2005. EXT.P2 REQUEST DT. 21.10.2005. EXT.P3 ORDER DT. 8-11-2005. EXT.P4 APPEAL DT. 12.11.2005. EXT.P5 ORDER DT. 30-11-2005. EXT.P6 SECOND APPEAL D. 8-12-2005. EXT.P7 REMINDER DT. 18.1.2006. EXT.P8 ORDER DT. 6.2.2006. EXT.P9 DECISION DT. 22.8.2007 ISSUED BY CENTRAL INFORMATION COMMISSIONER. EXT.P10 JUDGMENT DT. 5.2.2009 IN M.A.T. .275/2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 6532 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 30th day of August, 2010. J U D G M E N T The question of law posed in this writ petition is as to whether valued answer sheets of an examination returned to a public authority by the examiner entrusted with the task of valuation, is information exempted from disclosure under any of the provisions of the Right to Information Act, 2005 after the results of the examination are published. The question arises in the following set of facts: 2. The petitioner is a postman who appeared for the written examination for selection to the post of last grade officials in the Kerala Circle of the Postal Department of the Government of India on 24-4-2005. When results were published, the petitioner was informed that no one qualified in the examination from the Ernakulam Division. The petitioner applied for her mark list for the examination, which was supplied to her only after she filed O.A. No. 741/2005 before the Central Administrative Tribunal, Ernakulam Bench. From Ext P1 mark list, the petitioner learnt that she failed to obtain minimum marks in one of the three papers, she having scored only 37 marks for that paper. She scored 45 and 70 marks for papers I and II respectively. She therefore submitted Ext. P2 application before the 1st respondent- Central Public Information Officer of the Kerala Postal Circle, under Section 6 of the Right to Information Act, for a copy of the evaluated answer paper of paper III of the examination, in which she was shown as failed. She remitted the required fee for the same. By Ext. P3 dated 8-11-2005, the 1st respondent rejected her request, on the ground that no public interest is involved in the case. The petitioner filed Ext. P4 appeal before the 2nd respondent-Appellate Authority under the Right to Information Act, which was rejected by Ext. P5 order dated 30-11- W.P.C. No. 6532/06 -: 2 :- 2005, holding that disclosure of such nature will compromise the fairness and impartiality of the selection process and such disclosure does not justify the larger public interest. The petitioner filed Ext. P6 second appeal before the 3rd respondent-Central Information Commission, which was rejected by the Commission holding that such information is exempt from disclosure under Sections 8(1)(e) and 8(1) (j) of the Right to Information Act on the ground that the public authority is holding the information in fiduciary relationship and the information is purely a personal information, which has no relation to any public interest or activity. Aggrieved by those orders the petitioner has filed this writ petition seeking the following reliefs: “i. To quash Exhibits P3, P5 and P8 by the issuance of writ of certiorari, or other appropriate writ, order or direction. ii. To issue writ of mandamus or any other appropriate writ, order or direction commanding the respondent No.1 to grant a photocopy of the valued answer sheet of the petitioner in Paper III of the Last Grade Officials Examination held on 24.4.2005 forthwith. iii. Grant such other reliefs as may be prayed for and the court may deem fit to grant, and iv. Grant the costs of this writ petition. 3. The petitioner contends that there is no fiduciary relationship between the authority conducting the examination and the examiner, who values the answer papers, and the finding to the contrary in Ext. P8 is on an incorrect understanding of the meaning of the expression “fiduciary relationship” occurring in Section 8(1)(e) of the Right to Information Act. The counsel for the petitioner takes me through the meaning given to the expression in various text books and elucidation of the meaning of that expression by various courts, in support of that contention. According to the petitioner, since the evaluation of the W.P.C. No. 6532/06 -: 3 :- answer papers is for selecting the best among the candidates appearing in the examination, the same is a public activity and the information sought for is not a personal information coming within the purview of Section 8(1)(j). It is further contended that absence of public interest simpliciter is not a ground for rejection of request for information under Sections 8 and 9 of the Act. 4. A common counter affidavit has been filed by the 1st respondent on behalf of all the respondents and the Assistant Solicitor General appears for all the respondents also. The same seeks to support the impugned orders under Sections 8(1)(e) and 8(1)(j) of the Act. 5. A reply affidavit has been filed by the petitioner to refute the contentions in the counter affidavit, in which the propriety of the 3rd respondent, an independent statutory authority, being represented by the 1st respondent and filing of a common counter affidavit along with the other respondents, has been questioned by the petitioner. 6. I have heard counsel on both sides. The Standing Counsel for the Public Service Commission, who incidentally appeared before me for admission of a writ petition on the same day when this case was argued, in which the same question was in issue, on being informed about the hearing of this case, submitted that a decision in this writ petition would affect the Public Service Commission, since similar requests for copies of answer papers of tests conducted by the PSC have been rejected by the PSC, in respect of which writ petitions are also pending and therefore, he also may be allowed to advance arguments on the question of law involved. The Standing Counsel for the State Information Commission appearing in that case against the Public Service Commission, has stated that the State Commission has taken a decision in the case of the PSC against them and therefore he W.P.C. No. 6532/06 -: 4 :- also may be heard in the matter. Their requests were granted and they also argued the question of law involved in detail. I have considered the contentions of all counsel in detail. 7. At the outset I express my strong displeasure in the 3rd respondent being represented by the 1st respondent and the 1st respondent filing a counter affidavit on behalf of the 3rd respondent also, no action to cure which has been taken by the 3rd respondent, despite the petitioner pointing out the same in her reply affidavit. The Central Information Commission is an independent statutory, quasi- judicial authority, whose interest is not common with the other respondents since the 3rd respondent has to often render decisions adverse to the other respondents. Therefore the 1st respondent could not have filed a counter affidavit on behalf of the Commission also. In fact the same counsel could not have represented the Commission and the other respondents. Here it may be noted that the State Information Commission is represented by a separate standing counsel in this court and they defend their orders independently. Therefore the third respondent would do well in future to act accordingly. I leave it at that. 8. Right to information is not a mere statutory right created by the Right to Information Act. It is essentially a fundamental right guaranteed by the Constitution of India. Much before the enactment of the Right to Information Act, 2005, or its predecessor viz. the Freedom of Information Act, 2000, this constitutional right has been recognised and formulated by the Supreme Court of India in the celebrated decision of State of Rajasthan V Raj Narain, AIR 1975 SC 865. The renowned judge Justice K.K. Mathew had, in his inimitable style, eloquently stated the law on the subject thus, in paragraph 74 thereof: W.P.C. No. 6532/06 -: 5 :- “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public Act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the freedom of speech, though not Absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security, see New York Times Co.V United States (1971) 29 Law Ed. 822 = 403 U.S. 713. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self interest or bureaucratic routine. The responsibility of officials to explain and justify their acts is the chief safeguard against oppression and corruption.” In the case of S.P. Gupta V Union of India, 1981 (Supp) SCC 87 (para 65), the Supreme Court again emphasised the need of openness in the government in the following words: “65. The demand for openness in the government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rulers and once the vote is cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgment on the conduct of the government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of government – an attitude and habit of mind. But this important role people can fulfil in a democracy only if it is an open government where there is full access to information in regard to the functioning of the government.” The Right to Information Act, 2005 only establishes the machinery for supply of information when a citizen exercises his fundamental right to receive information in tune with the above constitutional principles, as is clear from the preamble to the Act, which reads thus: An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the W.P.C. No. 6532/06 -: 6 :- control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. 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 governed; And Whereas revelation of information in actual practice is likely 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; Now, Therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it. Section 3 of the Act lays down that “Subject to the provisions of this Act, all citizens shall have the right to information.” Of course, the Act recognises certain exceptions on sound principles, commensurate with the declaration in the preamble itself. Those are contained in Sections 8 and 9 of the Act. But since supply of information to those who desire to have it is the rule, these exceptions have to be construed strictly to the letter. 9. Since the respondents seek to justify refusal of the information requested for by the petitioner, claiming exemption under Section 8(1)(e) and 8(1)(j), I shall extract those provisions for easy reference: 8. Exemption from disclosure of information. –(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, – a) xx xx xx xx xx xx xx b) xx xx xx xx xx xx xx c) xx xx xx xx xx xx xx W.P.C. No. 6532/06 -: 7 :- d) xx xx xx xx xx xx xx e) 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; f) xx xx xx xx xx xx xx g) xx xx xx xx xx xx xx h) xx xx xx xx xx xx xx i) xx xx xx xx xx xx xx j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information; Provided that the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person. 10. The first question to be considered, therefore, is as to whether the public authority and the examiner engaged by the public authority to value the answer papers of the candidates, who have appeared for the examination conducted by the public authority, have a fiduciary relationship in relation to the valued answer sheets of the candidates, so as to deny the candidate a copy of the answer paper, claiming exemption from disclosure under Section 8(1)(e). The term ‘fiduciary relationship’ is not defined in the Act or any other statute for that matter. Therefore we have to rely on the general, accepted legal connotation of the term for deciding the issue. 11. Black’s Law Dictionary, Seventh Edition (1999), edited by Mr. Bryan A. Garner gives the following meaning for the term: “fiduciary relationship. A relationship under which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships – such as trustee- beneficiary, guardian-ward, agent-principal and attorney-client – W.P.C. No. 6532/06 -: 8 :- require the highest duty of care. Fiduciary relationship usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice on matters falling within the scope of the relationship, or (4) when there is a relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer. 12. The Corpus Juris Secundum gives the following meaning for the expression, which is stated to be based on various decisions on the subject: “ The term “fiduciary relation” has reference to any relationship of blood, business, friendship, or association in which the parties repose special trust and confidence in each other and are in a position to have and exercise, influence over each other, and implies a condition of superiority of one of the parties over the other; but in relation with undue influence, it does not necessarily imply acts which the law deems fraudulent. ............................................................................................................... ............................................................................................................... When it exists. What constitutes a fiduciary relationship is often a subject of controversy. The relationship may exist under a great variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence, in cases when confidence is reposed on one side and there is resulting superiority and influence on the other, in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed.” 13. The Dictionary of Law by L.B. Curzon (fourth edition) gives the following meaning for the word ‘fiduciary’: “fiduciary. Involving trust or confidence. e.g., as describing the relationship between a trustee and beneficiary. In general, where a fiduciary relationship between parties to a transaction exists, undue influence leading to some agreements, such as contract may be presumed.” 14. The meaning of the term has been considered by a Division Bench of this Court in Sunitha V Ramesh, 2010 (3) KLT 501, in the context of husband-wife relationship, while doing which, the meaning W.P.C. No. 6532/06 -: 9 :- of the expression given in some other text books were also noted. The Division Bench has held thus in paragraphs 19 to 21. “19. We now come to the question whether husband- wife relationship is one which can be described to be fiduciary relationship. We have already noted that there is no satisfactory and precise definition of the expression fiduciary relationship/capacity in any of the relevant statutes. Even in Francis (supra), the Court was obliged to consider the dictionaries and Law Lexicon. Black’s Law Dictionary explains “fiduciary capacity” in the following words; “One is said to act in a “fiduciary capacity” or to receive money or contract a debit in a “fiduciary capacity”, when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit for the benefit of another person, as to when he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part. The term is not restricted to technical or express trusts, but also includes such offices or relations as those of an attorney at law, a guardian, executor, or broker, a director of a corporation and a public officer.” 20. In Stroud’s Judicial Dictionary, the expression “fiduciary capacity” is described as follows-. FIDUCIARY CAPACITY. An administrator who has received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it “in a fiduciary capacity” within Debtor’s Act, 1869 .............; so, of the debt due from an executor who is indebted to his testators estate which he is able to pay but will not............; so...of moneys in the hands of a of a receiver..........., or agent.......,or manager........, or moneys due on an account from the London agent of a country solicitor........, or proceeds of sale in the hands of an auctioneer........., or moneys in the compromise of an action have been ordered to be held on certain trusts ................. of partnership moneys received by a partner ............[Note. The period to be looked to is that of the act done.......] Wharton’s Law Lexicon refers to the expression “fiduciary” and explains the same in the following words: “One who holds anything in trust. See Trust” In Bouvier’s Law Dictionary, “fiduciary relationship” is defined in the following words: “What constitutes fiduciary relation is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor or administrator, director of a corporation or society..... Medical or religious adviser,...... husband and wife ......... an agent who appropriates money put into his hands for a specific purpose, of investment, collector of city taxes who retains money officially collected,...... one who receives a note or security for collection.......In the following cases debt has been held not a W.P.C. No. 6532/06 -: 10 :- fiduciary one; a factor who retains money of his principal ...... an agent under an agreement to account and pay over monthly;.........one with whom general deposit of money is made.” (emphasis supplied) 21. We thus find that to understand the expression fiduciary capacity, we have to look at the nature of the relationship in the instant facts. At least in Bouvier’s Law Dictionary, the husband and wife relationship is specifically referred to as a fiduciary relationship. All relationships which are built on mutual trust, dependence and confidence of a special variety can certainly be described to be fiduciary relationship for the purpose of S.51(c), according to us. Following the dictionaries, trustee, executor, administrator, director of a Corporation or society, Medical or Religious Adviser, husband and wife, ward and guardian, agent and principal etc. can safely be held to be fiduciary relationship for the purpose of S.51(c) C.P.C. We asked for precedents specifically on the point as to husband and wife relationship can be described to be a fiduciary relationship. Specific precedents on the point are not brought to our notice.” 15. A Full Bench of the High Court of Delhi, in the decision of Secretary General Supreme Court of India V Subhash Chandra Agarwal, L.P.A. No. 501/2009, while dealing with the question as to whether the Chief Justice of India holds information regarding the assets of judges of the Supreme Court in a fiduciary capacity, held thus: “POINT 2: WHETHER THE CJI HELD THE “INFORMATION” IN HIS “FIDUCIARY CAPACITY” 95. The submission of the learned Attorney General is that the declarations are made to the CJI in his fiduciary capacity as pater familias of the judiciary. Therefore, assuming that the declarations, in terms of the 1997 resolution constitute “information” under the Act, yet they cannot be disclosed – or even particulars about whether, and who made such declaration, cannot be disclosed – as it would entail breach of a fiduciary duty by the CJI. He relies on Section 8(1)(e) to submit that a public authority is under no obligation to furnish “information available to a person in his fiduciary relationship”. He argues that the voluntary information given by the judges is not information in the public domain. He emphasises that the resolution crucially states: “The declaration made by the judges or the Chief Justice, as the case may be, shall be confidential”. W.P.C. No. 6532/06 -: 11 :- 96. On the other hand, Mr. Prashant Bhushan argues that a fiduciary relationship is one that is based on trust and good faith, rather than on any legal obligation. The purpose for disclosing a statement of assets to the CJI is to foster transparency within the judiciary and is essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice. Where the judges of the Supreme Court act in their official capacity in compliance with a formal Resolution, it cannot be said that the CJI acts as a fiduciary of the judges and that he must, therefore, act in the interests of the judges and not make such