Black Money Vis-a-Vis Corruption

(By *P.K. Somasundaran Nair, Advocate)

To be pragmatic, the whole Nation is concerned with Corruption. No doubt, corruption casts a shadow over India’s progress. I am reminded of the remarks of Indian born British Industrialist Lord Paul of Marylebone to the effect that along with the economic growth of India, corruption has grown faster. India is a country where there are  large number of people living below the poverty line, but however, year by year the number of Tatas and Birlas are increasing! The reason is obvious as observed by Wassily Leontief, Economist & the Global Nobel Prize Winner, that “Capitalism and free enterprise without strict regulation will hugely enrich the wealthy few under the pretence of national progress and widen the poverty chasm. We failed to enact a strict regulation. Anna Hazare launched a campaign with a view to eradicate corruption with all dignity and it finds result. Baba Ramdev, as also every citizen of India is well within their right to demand action on Black Money stashed away in banks abroad. But the tendency of the ruling coalition party, it seems is to whittle down the efforts of Hazare, Ramdev or even the rationale of the Supreme Court. That will only fetch negative results. It seems that they are thinking of Thousand and One ways to bypass the situation. The Government is duty bound and should come forward seeking guidelines of mandatory  nature to bring forth the hidden money in foreign banks as assets of the country. For this the Government has the blessings of the Supreme Court. It is highly necessary that the parking of undisclosed income or funds abroad, either by tax evasion or corruption  by individuals should be curbed and brought to light. The Finance Minister Mr. Pranab Mukherjee pointed out that despite the Global efforts and statements issued by G.20 Leaders at the London Summit in April, 2009, the Global Banking System  still remains opaque in various tax jurisdiction ignoring the spirit of the global plan for recovery and reform statements of G. 20 Leaders. In order to reverse the illicit outflows from developing countries like India, there should be effective measures such as enactment of law to end Bank secrecy. Now, what is happening in this country on the guise of enacting Lokpal? It is strange to note that the main conflict now it seems is whether the Prime Minister be included in the purview of Lokpal. Lokpal is intended to be an Ombudsman-an independent investigating agency against the delinquents in the power. It is true that under the basic structure of our Constitution there is no provision providing immunity to the Prime Minister, Chief Minister or Ministers. The relevant Article of the Indian Constitution is Article 361 - immunity from criminal proceedings is conferred on the President and the Governors only during their term of office. Bringing Prime Minister under the Lokpal’s purview appears to be inappropriate on various reasons. It may in all probability destabilize the Government itself. It is possible to raise politically motivated frivolous allegations against his office in a way to blackmail or tarnish his image. Thus the freedom of the Prime Minister will be eclipsed, that he cannot do anything effective. Even if the office of the Prime Minister is not included under Lokpal, virtually he will come into picture and be accountable. The leverage is his freedom to monitor will not be curtailed. The Prime Minister should be there to monitor and administer the country. Already we have agencies under Prevention of Corruption Act to deal with situations as to acts of corruption against the Prime Minister. So also we have constitutional provisions to deal with the mal-functioning of the members of the Higher Judiciary. We have enough checks and restraints on the political executives and public administrators to safeguard against subverting citizen’s right and misappropriation of public funds viz, the Supreme Court, Higher Judiciary, CAG, CEC, CVC, CBI and the like. Since Lokpal is intended as a check on the corrupt activities of executives in general, the Anti Corruption Wing of the C.B.I. will be brought under the control of Lokpal. No purpose will be served in enacting more laws and creating more institutions. The need of the hour is to implement the existing laws.

As pointed out, the Lokpal is intended primarily in identifying and prosecuting all wrongdoers including political, non political people and institutions. Therefore, prudence dictates that the Prime Minister and Judges of the High Court and Supreme Court should be excluded from the purview of the Lokpal. It may be seen that “Are we not deviating from the pivotal and crucial point to be sorted out viz, enacting law to bring to light the black money hoarded in banks abroad. Lokpal should have strict provisions to freeze the deposits of Indians and their benamis lying undisclosed in foreign banks failing which Lokpal will not fetch the desired result. If we, the citizens of India and the Government, are serious about the problem we have to start examining the problem right from the top. There cannot be any exception. I may refer to Paul Saumelsons, another Nobel Prize Winner who remarks that the bottle neck is always at the top and surely the rest will follow. That being so, the Chairman of UPA Government has to take initiative in issuing a special ordinance in freezing the unaccounted money kept in foreign  banks by the Indians and their benamis.  A strong step of such type is the need of the hour.

Inherent Vice -- When can be A Cause of Loss under the 
Marine Insurance Act, 1906?

(By V.B. Hari Narayan, Advocate, High Court of Kerala)

The  Issue  of  Inherent  Vice

The recent decision of the Supreme Court of United Kingdom in Global Process System Inc & Anr. v. Syarikat Takaful Malaysia Berhad (The Cendor MOPU), [2011] 1 Lloyd’s Rep.560 has somewhat settled the controversy regarding the application of the doctrine of proximate cause in respect of claims falling under S.55(2)(c) of the Marine Insurance Act, 1906 (United Kingdom). Under the Marine Insurance Act, the insurer is not liable for any loss caused by inherent vice. Similarly, under Institute Cargo Clause A, clause 4.4 specifically excludes from insurance cover any loss caused by inherent vice or nature of the subject matter insured. Thus often dispute arise as to what is the proximate cause of the loss, whether it is the perils of the sea or the excluded peril of inherent vice. The Supreme Court has given a quietus to the above issue by holding that the defense of inherent vice cannot be applied if the proximate cause of the loss is due to an external fortuitous act. In other words the defense of inherent vice can be raised only if the cause of loss emerge from within the subject matter.

Factual  Matrix

The subject matter of the insurance, a Jack up rig was covered under the Institute Cargo Clause A for ‘all risks’, excluding loss caused by inherent vice or nature of the subject matter insured. The oil rig “Cendor MOPU” was purchased by the Respondents for conversion into a mobile offshore production unit for use off the coast of Malaysia. The Respondents obtained insurance from the Appellant for carriage of the oil rig on a towed barge from Texas to Malaysia. The rig had three legs extending 300 feet into the air. During midway of the voyage, the legs were inspected and certain repairs were effected for fatigue cracking. Thereafter the voyage was resumed. When the vessal was being thus towed on its voyage to Malaysia the starboard leg fractured initially and the other two legs also cracked subsequently and fell into the sea. The loss resulted from metal fatigue, a progressive cracking mechanism resulting from fluctuated stresses at each level. The stress generated from the height and direction of the waves and it is common case that the weather was reasonably contemplated for the voyage. The loss of legs are the subject matter of claim under the policy. The insurance company denied the claim on various grounds contending inter alia that the loss was caused by inherent vice and therefore excluded from liability.

Legal  Issues  and  Reasoning

The Court of first instance, applying the principle laid down in Mayban General Insurance v. Alston Power Plants Ltd. (2004 2 Lloyd’s Rep.609) held that the cause of loss was the inability of the legs to withstand the normal incidence of voyage which is an inherent vice and thus the insurers were held not liable.  The Court of Appeal took a different view that the proximate cause of the loss was an insured peril in the form of a ‘leg breaking wave’, and therefore the insurers are liable for the loss. The matter was thus taken up in appeal by the insurers before the Supreme Court. 

The Supreme Court considered the issues of proximate cause, inherent vice and perils of the seas in detail before arriving at the conclusion. The Supreme Court declared that the Mayban case was wrongly decided as the net effect of that decision would be to defeat the very purpose of cargo insurance and against the specific provision contained under S.40(1) of the Marine Insurance Act. Accordingly the Court held that in order to attract the exclusion of liability on the ground of inherent vice, the loss must be caused due to some reason attributable to the cargo itself and not by any external fortuitous action. 

Perils of the Seas has been defined under paragraph 7 of the Schedule to Marine Insurance Act, which refers only to fortuitous accidents or casualties of the seas and does not include the ordinary action of the wind and waves. The Supreme Court approved the decision in The Miss Jay Jay (19850 1 Lloyd’s Rep.264) on the interpretation given to perils of the seas and reiterated that the word ‘ordinary’ describes the action and not the ‘wind and the waves’. The Court gave a wide definition to ‘perils of the seas’ and a narrow interpretation to ‘inherent vice’. It held in clear terms that if there is a loss by perils of the seas then there cannot be a loss due to inherent vice also.

The Supreme Court thus unanimously held that the proximate cause of loss, applying common sense principle was not inherent vice, nor indeed ordinary wear or tear or the ordinary action of the wind and waves, but an external fortuitous accident or casualty of the sea. Accordingly the appeal filed by the insurer was dismissed.

Conclusion

By the decision of the Supreme Court it has now become settled and conclusive that in order for a loss to come within the purview of inherent vice, the reason for the loss must be the cargo itself and that it would still suffer loss, irrespective of any fortuitous event. It is further clear from the judgment that inherent vice and perils of the seas cannot together be regarded as the proximate cause concurrently. The principle laid down in this decision will certainly help in identifying the true proximate cause of loss in claims raising such issues.

Disclosure of Marks and Supply Copies of Answer

Sheets under the Right to  Information Act, 2005

(By R. Muralidharan, Managing Director, PONTEX and Deputy Registrar (Legal),

Co-operative Department, Puducherry) 

Information  is  right

The enactment of the Right to Information Act, 2005 is considered to be the second independence of the free India.  No other Act, perhaps, has made so many inroads and brought ramification in the welfare of the people as this Act.  This Act has certainly achieved the avowed object of bringing transparency in administration. But the activists of the Act are certainly morose that it has not reached the public as it ought to have and the misuse and abuse are as much as its use.  According to them the officials are still insensitive to this Act and the penalty clause is only sparingly used.  But the width and ambit of the Act are certainly widened with a number of judgments and decisions of the High Courts and Information Commissions which bring an insight to the subject.  What is considered as secrecy is now an exception. The disclosure is the rule in the portals of the public authorities.  

Gone are the days where even disclosure of the marks of the candidates was considered to be a forbidden fruit.  The candidate is now entitled to get even a copy of the answer sheet under the Act.  But the journey to reach this destination is not without trials and tribulation.  This article takes you through the journey through the decisions of the Information Commissions and the High Courts.  Please come along!

‘No’  to  the  evaluated  sheet  –  Earlier  decisions  of  Information  Commissions

While deciding that that evaluated answer sheet is beyond the purview of the applicant it was held that the public authority enjoys fiduciary relationship with the examiner and the information is personal in nature.

In a decision reported in (2008 (1) ID 445) the State Information Commission, Punjab held that an individual interest cannot be permitted to override the larger interest.  Complainant is not entitled to the copies of the evaluated answer sheets, whether these pertain to the complainant himself or other candidates.

The Central Information Commission, in Vivek Trupathi v. Union Public Service Commission,Case No. ICPB/A-2/CIC/2006 dated 6.2.2006, held that it is true that there is no provision in Section 8 of the Act specifically exempting disclosure of information relating to examination papers. When answer papers are evaluated, the authority conducting the examination and the examiners evaluating the answer papers stand in a fiduciary relationship with each other. Such a relationship warrants maintenance of confidentiality by both of the   manner  and  method of evaluation. That is the reason why while mark sheets are made readily available as a matter of course, copies of the evaluated answer papers are not made available to the candidates. In case of evaluated answer papers, the information available with the public authority is in his fiduciary relationship, the disclosure of which is exempt under Section 8(1)(e). In addition, when a candidate seeks for a copy of evaluated answer paper, either of his/her own or others, it is purely a personal information, the disclosure of which has no relation to any public interest or activity, which is covered under Section 8(1)(j) of the Act.

In J. Shahbudeen, Trivandrum v. Director of Postal Services, Kerala [Appeal No.22/ICPB/2006 dated 18.5. 2006] the appellant appeared for a departmental examination but was unsuccessful.  He applied for a copy of evaluated sheet.  Quoting extensively the order in Appeal No.ICPB/A-2/CIC/2006 (supra) the refusal of request was upheld.

Relying on the above decision, the Central Information Commission, in D.S. Meena v. C.P.I.O., North West Railway [ICPB/A3/CIC/2006 dated 10.2.2006]  wherein the appellant has sough for copies of the answer sheets of all other successful candidates also, held that the CPIO was justified in denying supply of a copy of the evaluated answer sheet of the appellant. However, neither the CPIO nor the appellate authority had dealt with supply of a copy of the answer key. If there is an answer key, the same should be furnished to the appellant. 

In Anuj Kumar Singh Chauhan v. Public Information Officer, University of Delhi [Decision No.CIC/SG/A/2009/002739/5740 Appeal No. CIC/SG/A/2009/002739] it was held that the law as it stands is that Universities are not under an obligation to disclose copies of evaluated answer sheets. The PIO is under no obligation to disclose copy of the answer sheet to the appellant. With regard to the copy of the marking scheme, the PIO is to provide the information to the appellant. 

Decision  of  the  Full  Bench  of  the  Commission

A Full Bench of the Central Information Commission in Rakesh Kumar Singh & Ors. v. Assistant Director, Lok Sabha Secretariat & Ors. (2009 (1) ID 465) gave a different dimension to the subject.  It was held that there are various types of examinations conducted by public authorities which could be either public or limited examinations. There are institutions like U.P.S.C., Staff Commission, C.B.S.E. etc, the main function of which is only to conduct examinations. Many public authorities, as those in the present appeals like Jal Board, Railways, Lok Saba Secretariat, DDA, whose main function is not of conducting examinations, do so either to recruit fresh candidates for jobs or for promotion of existing staff. Thus these public authorities conduct both public as well as departmental examinations.

In regard to public examinations conducted by institutions established by the Constitution like U.P.S.C. or institutions established by any enactment by the Parliament or Rules made thereunder like C.B.S.E., Staff Selection Commission, Universities., etc, the function of which is mainly to conduct examinations and which have an established system as fool-proof as that can be, and which, by their own rules or regulations prohibit disclosure of evaluated answer sheets or where the disclosure of evaluated answer sheets would result in rendering the system unworkable in practice and on the basis of the rationale followed by the Supreme Court a citizen cannot seek disclosure of the evaluated answer sheets under the R.T.I. Act, 2005.

However, insofar as the departmental examinees are concerned or the proceedings of Departmental Promotion Committees are concerned, the Commission tends took a different view. In such cases, the numbers of examinees are limited and it is necessary that neutrality and fairness are maintained to the best possible extent. Disclosure of proceedings or disclosure of the answer sheets not only of the examinees but also of the other candidates bring in fairness and neutrality and will make the system more transparent and accountable. If a written examination is held for the purpose of selection or promotion, the concerned candidate may ask for a copy of the evaluated answer sheet from the authority conducting such test/examination. The right to get an evaluated answer sheet does not, however, extend to claiming inspection of or getting a copy of the evaluated answer sheets concerning other persons in which case, if the concerned CPIO decides to disclose the information, he will have to follow the procedure laid down under Section 11 of the Right to Information Act. (Emphasis mine).

High  Court  decisions  -   A  paradigm  shift 

When denial of disclosure of marks and copies of evaluated answer sheets is challenged in various High Courts, the High Courts take a holistic approach, quite in consonance with the spirit of the Act and reject the pleas like fiduciary relationship, personal information or intellectual property. 

Cut  off  marks  and  model  answers  to  be  disclosed

The issue involved before High of Court of Delhi in Union Public Service Commission v. Central Information Commission & Ors. (2008 (1) ID 430) relates to disclosure of cut-off marks for the optional subjects as well as for general studies of the Civil Services (Preliminary Examination) 2006.  The question of disclosure of the individual marks obtained by each of the candidates as well as the disclosure of the model answers to each series of question for all the subjects is also in issue. Modifying the directions given by the Central Information Commission, the Court held that the information sought by the private respondents does not fall within the expression of ‘intellectual property’.  Therefore, even if it is assumed that it is ‘information’ within the meaning of Section 8(1)(d), its disclosure would not harm the competitive position of any third party.  The disclosure of information does not in any way harm the protected interests of U.P.S.C. or any third party.  The Court further directed U.P.S.C. to disclose the cut-off marks and model answers.

When the judgment of the learned single Judge was taken on appeal before the Division Bench of Delhi High Court in Union Public Service Commission v. Shiv Shambu & Ors.,  L.P.A. No.313/2007 dated 3.9.2008, the Court was unable to understand the apprehension of the U.P.S.C. that by disclosing the working of the scaling methodology for the preliminary examination, merit can get compromised and candidates with less merit would be selected. The whole purpose of having three levels of examination i.e., preliminary examination, main examination and then interview, is to ensure that only meritorious candidates are selected for government service. On the above ground the apprehension expressed by the U.P.S.C. was not well-founded, and the appeal was dismissed.

Identity  of  the  examiner  can  be  withheld

The dictum of Calcutta High Court is that examinee must have access to evaluated answer scripts but identity of the examiner can be withheld. The defence of the University of Calcutta in Pritam Rooj v. University of Calcutta & Ors. (AIR 2008 Cal. 118 : 2008 (2) ID 267), refusing to furnish answer sheet to the examinee was that it has to keep the examiner’s identity concealed so that examiner is not threatened was rejected.  A ground founded on apprehended lawlessness may not stultify natural operation of a statute. However, procedure may be evolved such that the identity of examiner is not apparent on face of evaluated answer script.  

The judgment of the learned single Judge was approved by the Division Bench in University of Calcutta & Ors. v.  Pritam Rooj  (2009 (1) ID 161: AIR 2009 Cal.97 :  2009 (2) KLT SN 43 (C.No.45) Cal.). According to the Division Bench, once the process of writing the examination is over and the answer script is handed over by an examinee to the invigilator for onward transmission thereof to the examiner for assessment/evaluation, the answer scripts become the property of the public authority and information in respect thereof, if sought for, cannot be denied on the specious ground that the examination having answered the questions he knows better than anyone else what has been written on the answer scripts and, therefore, seeking of information in respect thereof would not be within the public domain.  Every person discharging public functions must be accountable to the people and there is no reason as to why the examiners who also discharge public duty should not be so accountable.  

The Kerala High Court in Public Information Officer v. State Information Commission in 2010 (1) KLT SN 69 (C.No. 82) :  2010 (2) ID 119, held that the information regarding the details of the person who had valued or re-valued the answer script of the third party would qualify itself as personal information, the disclosure of which has no relationship to any public activity or interest within the meaning of S.8(1)(j) of the Act. Moreover such information would cause an unwarranted invasion of the privacy of the individual, namely the examinee and unless the competent authority is satisfied that there is a larger public interest which justifies the disclosure of such information, there cannot be a compulsory disclosure of the same.  Similar view was held in Calicut University & Ors.  v. State Information Commission & Ors. (2010 (2) ID 119).

Marks  of  each  question  to  be  provided

In Bihar Public Service Commission v. State of Bihar & Anr.  (2009 (1) ID 298), the third respondent candidate sought information regarding the marks obtained in each question of the paper in the competitive examination conducted by the Bihar Public Service Commission.  Order passed by the State Information Commission directing the Bihar Public Service Commission, a constitutional body to furnish information sought for by the candidate was held legal by the Patna High Court.  The Court has a duty to hold in favour of a citizen which will only help in furtherance of the object of the Act.  An interpretation has to be given which fulfils the object and right conferred upon the citizens under S.3 and not to dilute or mar it in any other manner.  

Matter  sub-judice  i s no  defence

The High Court of Madras in The Tamil Nadu Public Service Commission v. The Tamil Nadu Information Commission & Anr. (2010 (1) ID 190)  held that pendency of two Writ Petitions has no relevance to the facts of the case and the question of sub-judice need not stop the T.N.P.S.C from furnishing the information.  So long as the information sought for is available with the petitioner and it was not exempted under S.8, they are duty bound to provide such information.

‘No’  to  fiduciary  relationship

On appeal, the Division Bench of the High Court of Madras in The Tamil Nadu Public Service Commission v. The Tamil Nadu Information  Commission & Ors.  2011 (1) CTC 641) :  (2011 (1) ID 279), held that the information sought for by the second respondent pertains to a selection to the post of Assistant Engineers in which selection process, the second respondent also participated. In no manner, it could be stated that the information sought for could be considered as a “commercial confidence”, “trade secret” or “intellectual property” if disclosed would harm the competitive position of a third party. The complaint of the second respondent is that a person who has secured lesser mark has had an unfair advantage, by being placed higher in the merit/select list and the second respondent was not aware of the same, since the bulletin published by the T.N.P.S.C. during the relevant time did not contain the marks secured by the candidates. Likewise, it cannot be stated that the information available with the Commission is held in fiduciary relationship as the Commission is the recruiting body. Therefore, the first respondent rightly ordered that the information has to be supplied and the stand taken by the T.N.P.S.C was not tenable. 

The question of law posed before the Kerala High Court in Tressa Irish v. The Central Public Information Officer & Ors. (2010(3) KLT 965: 2011 (1) ID 172), is 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 Act after the results of the examination are published.  

Held, after the publication of the results, no fiduciary relationship can be attributed among the parties to the said transaction. In any event after the answer papers are returned to the public authority by the examiner, there is no fiduciary relationship between the public authority and the examiner, claiming exemption from disclosure under Section 8(1)(e). It is in the larger public interest to ensure transparency in the method of valuation of every public examination and to satisfy every candidate who appeared in the examination that his answer script has been valued properly, and nondisclosure of the information would be against the spirit of the Act. Without the candidate knowing how his answers have been evaluated, he would not be able to seek his remedies against wrong evaluation appropriately, if the evaluation is wrong.  

Even otherwise it is idle for a public authority to assume that if answer papers are held to be information which the authority is liable to disclose, all the candidates who have written the examination would apply for copies of answer papers and it would be difficult to supply the information to all. Only those candidates dissatisfied with the results would apply for copies of the answer papers, which would be a small fraction of the total number, if the valuation is fair and proper and if the valuation is largely unfair and improper, then it is in public interest that the truth should come out, whatever be the difficulties. Therefore unless the public authority has something to hide, they should not worry about those difficulties, which in any event are not likely to occur in the normal course.

Applicant  is  entitled  to  his  answer  sheet

The applicant has elicited various kinds of information, including a copy of the answer sheet of the examination attempted by him.  The argument of the petitioner before the Delhi High Court in ICAI v. Central Information Commissioner & Anr.  (2010 (1) ID 587) is that since the Supreme Court in Secretary, West Bengal Council for Higher Secondary Education v. Ayan Das  (2007) 8 SCC 242)  and President, Board of Secondary Education, Orissa & Anr.  v. D. Suvankar & Anr. ((2007) 1 SCC 603) has declared the law in such matters and that candidates who seek copies of answer sheet cannot claim it as a matter of right is unpersuasive.

It was held that in the cases before the Supreme Court there is no discussion or mention of the R.T.I. Act.  Concededly the judgments were not examining information application under the R.T.I. Act.  The judgments have to be read in their terms and in the contextual setting.  The Court should be extremely slow in interpreting such rights, dealings with personal liberties and freedoms on the basis of some inarticulate premise of a judgment.  The order of the Central Information Commission directing disclosure of the applicant’s answer sheets is sustainable.

When  once  selection  is  over,  disclosure  can  follow

In T. Balaji and two others v. The Secretary, Tamil Nadu Public Service Commission and two others (2010 (1) ID 337) before the High Court of Madras what is sought for is only the mark sheets of the selected candidates and not the answer sheets. Under such circumstances there is no necessity to go into the question as to whether the petitioners are entitled to get the answer sheets of the selected candidates or not.  It cannot be said that even after the process of selection is over the Act cannot be pressed into service.  

There is no fiduciary relationship between the public authority and examiner engaged by it for evaluating answer sheets. Holding this view in Kerala Public Service Commission v. State Information Commission (2011 (2) KLT 88) the Division Bench of Kerala High Court stated that 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 P.S.C. 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.  At the best, it could be pointed out that the identity of the examiners has to be insulated from public gaze, having regard to issue relatable to vulnerability and exposure to corruption if the identities of the examiners are disclosed in advance.  But, at any rate, such issues would go to oblivion after the conclusion of the evaluation of the answer scripts and the publication of the results.  Therefore, it would not 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 shield off under any law or avowed principle of privacy.

Instruction  contrary  to  disclosure  is  invalid

In The Tamil Nadu Public Service Commission v. The Tamil Nadu Information Commission & Ors. (2010 (1) ID 542 : (2010) 5 MLJ 56)  the stand of the appellant before the High Court of Madras was that after publication of results, the key answers kept by the T.N.P.S.C. as well as the answer sheets are not provided to any candidate as a matter of policy.  The T.N.P.S.C.  is not bound to disclose the information sought for in this regard.  The manual on the R.T.I. Act prepared by the T.N.P.S.C.  stated that the Commission though has decided to share certain types of information, having regard to S.8 it has decided that 27 items will not be available in public domain as found in the manual.

Not impressed by the stand, the Court held that merely because in the manual prepared by the T.N.P.S.C., they have made such reservation claiming to be fall under S.8 that will not deter the respondent Information Commission to direct them to disclose the information.  The exemption claim should be in terms of  R.T.I. Act and not otherwise. The petitioner T.N.P.S.C.  is only conducting examinations for candidates, who are seeking public employment.  These are all vital information which a citizen is entitled to get, since after selection if a person gets appointed to public office, the authority under which he holds office can also be questioned in appropriate legal forum. The instruction given by the T.N.P.S.C. has no bearing on the question of deciding the controversy on hand.

The question before the Division Bench of the Bombay High Court in Shaunak H. Saitya v. Union of India & Ors. (2011 (1) ID 344), is whether the instructions issued, model answers given to the examiners and moderators and number of times of the Council has revised the marks of any candidate or any class of candidates in accordance with Regulation 39(2) of the Chartered Accountants Regulation, 1988 are to be disclosed.  This question was answered in affirmative.  

Section 8(1)(e) does not protect confidential information and the claim of intellectual property has not made. In the reply it is suggested that the suggested answers are published and sold in open market by the Board. Therefore, there can be no confidentiality about suggested answers. It is no where explained what is the difference between the suggested answers and the solutions.  Till the result of the examination is declared, the information sought by the petitioner has to be treated as confidential, but once the result is declared, information cannot be treated as confidential. 

Does a candidate lose his right under the Act as there is a condition in the brochure that no photocopy of the ORS sheet will be provided? Answering in negative, the Delhi High Court in Indian Institute of Technology (IIT) v. Navin Talwar & Anr. (2011 (1) ID 259) held that the right of a candidate, sitting for JEE or GATE, to obtain information under the Act is a statutory one. It cannot be said to have been waived by such candidate only because of a clause in the information brochure for the JEE or GATE. In other words, a candidate does not lose his or her right under the Act only because he or she has agreed to sit for JEE or GATE. The condition in the brochure that no photocopy of the ORS sheet will be provided is subject to the R.T.I. Act. It cannot override the R.T.I. Act. 

Disclosure  is  in  public  interest

The examination conducted by the Arunachal Pradesh Public Service Commission (A.P.P.S.C.) has got involvement of public element. The applicant upon perusal of the evaluated answer script may find sufficient reason to raise further objection contending that the selection for the public post was not made in a proper and fair manner. That apart, it might also provide scope to rectify himself by knowing his deficiencies, if any. The information sought to be received by the applicant, in such a situation, is not personal information but the element of public interest is deeply rooted in it, vide Arunachal Pradesh Public Service Commission v. Arunachal Pradesh Information Commission & Anr. (2010 (2) ID 582 (Gauhati HC).

In  fine

From the catena of decisions delineated above one could see how much shift the Right to Information Act has brought in the field of education bringing in more transparency. 

Replication

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

Replication is a step in civil cases. In a civil case, the defendant files written statement. If the plaintiff desires any explanation to the written statement, he files a clarification statement. It is called replication. It is a common affair in every civil matter. Replication means plaintiffs answer to the defendant’s plea. This is the dictionary meaning. What is true between plaintiff and defendant is equally true between petitioner and respondent.

In a family dispute matter a petitioner filed replication. The respondent objected the same, as there is no rule in the Civil Procedure Code 1908. As petition, objection and replication are routine matters, none noticed about the dire necessacity of the rule. Practice has the force of law. But every presiding officer may not accept the practice theory.

Civil Procedure Code, is the mother procedure code. It contains sections, orders and rules, like three in one. S.151 of the Code speaks about inherent power of the court. It is versatile one. In the absence of specific section, order or rule, the court uses inherent power for the ends of justice and to prevent abuse of the process of the court. Parties may invoke the inherent power, but subject to the decision of the court. Therefore, it is better to have a rule in the Civil Procedure Code to enable one to file replication as a matter of right.