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. 

SORRY, MY FRIENDS, SORRY 

(By K. Ramakumar, Sr.Advocate, High Court of Kerala)

I was taken aback when a public interest litigant, a Lawyer, was zealously arguing that Article 220 of the Constitution of India forbids registration of a case against retired Judges. The Bench, which was hearing the matter, naturally, got perturbed. The argument was outrageous, if not, near nonsensical. It is difficult to contain oneself on such occasions in spite of the warning administered by the Supreme Court in Lanka Venkateswarlu v. State of Andhra Pradesh  ((2011) 4 SCC 363):

“It is also well known that anger deprives a human being of his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice”.

In another court a Counsel who stood up when the case was called was asked by the Judge “What are the prayers in the Writ Petition?” May be a greenhorn, he appeared to fumble and not able to comprehend what is meant by a prayer.

I am afraid such instances are not only on the increase but are becoming the order of the day. Counsel, whatever be his standing, are not expected to appear before the High Court, without understanding the nuances of Law, at any rate without adequate preparation. Counsel’s job is to render assistance to the Court and not to hinder speedy disposal of cases. Equipping oneself therefore, is of paramount importance, which these days is altogether forgotten.

If I may be permitted to recount a personal event, when I appeared in my first Writ Petition, which related to the validity of dismissal of a Peon from the Indian Institute of Technology, Meenambakkom, the Judge asked me whether a writ will lie against the IIT. To be frank, I was not able to understand what the Judge was asking me. Articles 12 and Article 226 of the Constitution of India, were then Greek and Latin to me. Finding me fumbling the Judge was gracious enough to grant me time to work up and ultimately it was held that no writ will issue, but later the view was upturned.

Fortunately in the High Court of Kerala such questions are rarely asked and therefore counsel are emboldened to seek writs against private bodies, social clubs and the like with the Registry not even raising objections how a petition under Article 226 of the Constitution of India is maintainable. Will you believe me or not ? When an application was presented under the Travancore Cochin High Court Act, the Registry made a note on the docket that there is no such Act and it is repealed. Even now the High Court of Kerala functions under that Act, which was intended to run a Part-B High Court under the Constitution of India.

The fall out ? Standards in the legal profession become lower and lower costing the litigant public heavily as callous carelessness, ineptitude, indifference to quality etc., increase at all levels.

Speaking again personally, the first ten years of my practice was thrilling, adventerous and challenging as learning and hard work then were respected and recognized. It counted as well, until the “How to win cases and influence Judges” syndrome surfaced. (Due apology to Dale Carnegie). Some people perfected it. Though an aberration of yester years, the damage remains to be repaired even now leaving legal practitioners with a craving for hard and sustained work with no job satisfaction and the poor litigant with uncertainties, delays and conflicting decisions.

What is the role of a counsel in Court ? See what the Supreme Court said in A.S. Mohammed Rafi v. State of Tamil Nadu (2011 (1) KLT  39 (SC):

“Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

This therefore is a sacred duty. It is not for nothing that the only profession that finds a place in the Constitution of India is that of Legal Practitioners (Article 22). Long back Justice Hugo Black of the United States Supreme Court declared “Lawyers in Criminal Courts are necessities, not luxuries”.

How then can a Lawyer forget the fact that he is representing the cause of a fellow citizen and go unprepared and ill-equipped in a Court of Law particularly in the High Court which should be a place of excellence and of no help or assistance to the Judge, who is doing a sacred duty as the functions of the Court are also for “Parithranaya Sadhoonam”. Recently again in Lanka Venkateswarlu case, the Supreme Court severely criticized the following observations of the Andhra Pradesh High Court:

“This is a classic case how the Government Pleaders appointed on the basis of merit and ability” (emphasis supplied) are discharging their function protecting the interest of their clients.

The Apex Court said this about the aforesaid observations:

“We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.”

Do, we, the Lawyers of the High Court of Kerala, the highest court of the State (architectural too) deserve also only such sarcasms? Are we there to receive reliefs or rebuffs? And can we call each other learned as we do now? If not, equip yourself first, only then attempt to appear in the High Court, or for that matter in any Court which is now guaranteed by the notification implementing the provisions of the Advocates’ Act.

I have also half a mind to implore the inimitable Sri Kelu Nambiar, the doyen of Kerala Bar not to stop with his last page but to continue to write in his racy style.

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.

Undue Influence -- Principles Laid Down in Some Old Decisions which

Continues to be the Back Bone of the Law on the Subject

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1. One of the vitiating grounds rendering contracts and transfers voidable is undue influence.

2.   Undue influence is sometimes described as ‘moral coercion’ as distinguished from ‘physical coercion’. In Allcard v. Skinner’ Lindley L.J.(L.R. 1887 (36) (L.D.145) observed “As no Court has ever attempted to define fraud, so no Court has ever attempted to define undue influence. The equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual influence, tyranny and with infinite varieties of fraud.” Sir F. Pollock says that “Undue influence consists in any influence brought to bear upon a person entering into an agreement or consenting to a disposal of property which having regard to the age and capacity of the party, the nature of the transaction and all the circumstances of the case appears to have been such as to preclude the exercise of free and deliberate judgement.”

3. Undue influence is defined in Section 16 of the Indian Contract Act. The scope of that section is somewhat narrow and hence the equitable  principles laid down in English cases have been applied to Indian cases. In Rama Pattar and sons v. Manickam (ILR 58 Mad. 454) it was ruled that the English authorities also should furnish a guidance in the application of the rule.

4. To understand the true import of the plea and the law on this subject, one will be advised to look into some of the leading cases. The leading English case is that of Allcard v. Skinner (L.R. 1887 (36) (L.D.145). Here Miss Allcard joined a sisterhood of which the defendant was a religious superior. Miss Allcard made large gifts to the religious superior and then left the sisterhood and some years after she repudiated the gifts and brought an action for the return of her properties. The Court expressed that the relationship between Miss Allcard and the religious superior was such as to raise a presumption of undue influence. Lindley L.J. said “To protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws.” Cotton L.J. said “The Court interferes not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy.” Lindley L.J. says that the doctrine is based on the principle that persons should not be victimized by others and not on the ground that persons should be saved from the consequences of their own folly and imprudence. Cotton L.J. enunciates the same principle and says “that the doctrine is based on public policy in order to prevent the relations which existed between the parties and the influence arising therefrom from being abused.”

5. Rhodes v. Bate (l.R. 1886 (1) CL.252 is another English case. Here, Rhodes was living with her brother in law, who became indebted to Bate in a large sum of money and for this debt Rhodes along with her brother in law signed bonds in favour of Bate charging almost the whole of her estate. Subsequently she complained that the documents were obtained by undue influence exercised on her by her brother in law as well as Bate who stood in confidential relations to her. Turner L.J. set aside these transactions holding that “where confidential relations exist, those standing in such relations cannot entitle themselves to hold the benefits unless they can show that the persons who have conferred the benefits had competent and independent advice. The Lord Justice stated this to be “ a settled general principle of the Court.” In such cases neither does the age nor the capacity of the person conferring the benefit affect the principle.

6.   Besides the English cases cited above, there are some important Indian cases on this topic, in Sita Prasad v. Prabhu Lal (1888) ILR 10 ALL.535) the plaintiff who was wrongly deprived of all his properties by his relations sought the help of a rich man in order to recover his properties and while living under the protection of the latter he made to sale and gift of all his properties to the rich man. It was held that the relationship between the parties was such as to cast upon the latter the obligation of satisfying that the transactions were honest and bona fide. Here Straight J. observed “Free and voluntary contracts of persons will not be interfered with or disturbed by Courts of law” however ill considered or foolish the contracts might be. “What the Courts will do is to see that where one person is so situated as to be under the control and influence of another, such other does not unduly and unfairly exercise that influence and control over such person for his own advantage or benefit.”

7. In Inche Noniah Bine Mahommad Tahir v. Allie Bin Omar Bin Abdulla Bahashuan, (C 1928) 56 MLJ 349 P.C.) the plaintiff, an old lady made a gift of almost the whole of her properties in favour of the defendant who was her relation and who was managing her affairs and then she repudiated the gifts and claimed to recover the properties. In this case, the donee had the advice of a lawyer who received instructions from her and read out and explained the contents of the deed to her and also informed her that the deed was irrevocable. This lawyer was one engaged by the donee. Their Lordships found that this Lawyer acted in perfect good faith. Another lawyer on the instruction of one of the donor's relatives, saw the donor in order to caution her and perhaps to dissuade her from making the gifts. The old lady was angry at the coming in of this lawyer and said she had made the deed voluntarily. In spite of all this evidence their Lordships set aside the deed holding that there was undue influence. They held that the former lawyer called in by the donee was not an independent and disinterested adviser and the advice of the second lawyer was not a substitute for independent advice. They referred to Rhodes v. Bate, and said “It is not sufficient that the donor should have an independent advisor unless he acts on his advice. The same influence that produced the desire to make the gift would produce disregard of the advice to refrain from executing it and so defeat the rule.” The facts of this case show with what strictness the principle of law is enforced. Their Lordships set aside the gift and stated “that they regard it as most important from the point of view of public policy to maintain the rule of Law which has been laid down and to insist that a gift made under circumstances which give rise to the presumption must be set aside unless the donee is able to satisfy the Court of facts sufficient to rebut the presumption.” The Judicial Committee followed the decision in Allcard v. Skinner which divided the gifts into 2 classes “first, where the gift was the result of influence expressly used by the donee. Secondly, where the relationship between the donor and the donee have been such as to raise a presumption that the donee had influence over the donor. In the first class of cases, gifts are set aside on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the Courts interfere not on the ground that any wrongful act was committed by the donee but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom being abused.”

8. Tungabai v. Yeshwant (ILR 1945 Bom.189 P.C.) is a direct case on this point. Here a husband was heavily involved in debts and his submissive wife gave security of all her Sridhanam property to her husband’s creditor. Their Lordships held that these facts raised a presumption that the wife was acting under the influence of her husband for whose benefit the security was executed. They relied on the principle enunciated in Allcard v. Skinner and added “It is unnecessary to decide whether there was actual fraud by the husband; it is enough to show that the wife was acting under his influence and not as a free agent.”

9. There are many cases, where persons heavily involved in debts have roped in their dependant relations and made them to stand surety or give security for their relations, signed documents undertaking the liability. In all these cases the documents have been set aside and relief was granted to the dependant relations. Narayandoss Balakrishna Doss v. Buchraj Chordia Socar, Rama Patter and Brothers v. Manikkam and Tunga Bai v. Yeswant, are cases of this type. In all these cases the creditors who obtained the security were not allowed to retain the benefits of the security on the ground that they were aware of the existence of the fiduciary relationship between the debtor and the surety and that they (the creditors) are under the same disability as the party who occupied the position of confidence.

10. Yet another decision of the Privy Counsel reported in A.N. Palanivel Mudaliar v. Nelavathy Ammal (1937) (i) MLJ 719 (P.C.) is noteworthy. In this case there were three sisters. Their large estate was under litigation. The husband of the eldest sister took the management of the estate and carried on the legal proceedings and recovered the estate. As remuneration for his services the husband of the eldest sister obtained a promissory note for a sum of `15,000/- from all the three sisters and subsequently filed a suit to recover the money. The  eldest sister admitted the claim and suffered a decree for a third of the amount. So far as the younger sisters were concerned their Lordships refused to pass a decree against them holding that the eldest sister was in a position to influence her younger sisters and that the plaintiff as their agent stood to them in a position of active confidence and was in a position to dominate their will and that necessary proof of good faith on his part was wanting. The claim on the pronote was dismissed against the two younger sisters but the alternative claim for remuneration for services rendered was granted. In this case also the plaintiff was not guilty of fraud and there was not proof of fraud or exercise of any influence. The contract was set aside on the ground that plaintiff was in a position of active confidence.

11. These cases lay down the principle that persons who have influence over others cannot retain the benefits of the transactions unless they prove that the persons who conferred the benefits had independent and disinterest advice. It is not necessary to prove by direct evidence that any deception or fraud was practiced. There need be no proof of fraud or imposition or any specific act of undue influence. It is enough to establish that confidential or fiduciary relationship existed between the person conferring the benefit and the person deriving the benefit. When once you establish this relationship and when the transaction in question was to the detriment of the person conferring the benefit, you have made out a case of undue influence and then it will be incumbent on the person who derived the benefits to prove his good faith by establishing that the other party had independent and disinterested advice.

12. What is confidential or ‘fiduciary relationship’? A parent stands in a fiduciary relation to his child, a guardian to his ward a physician to his patient, a lawyer to his client, a husband to wife, an agent or manager to the pardanashin women, a spiritual advisor to his disciple, a trustee to his beneficiary. The list is not exhaustive. These and other similar relations where one owes a duty and is bound to take care of the other, will come under the category of fiduciary relations. The relationship itself attracts the applicability of the rule.

13. Where no confidential or fiduciary relationship exists, then age and capacity are important elements in determining whether the consent was free. Section 16 of the Indian Contract Act is deals with this subject.

14. The presumption of undue influence arising from the special relationships mentioned above is rebuttable. It is open to the transferee to show that the transaction was clearly understood by the transferor and “that it was the result of his mental or conscious act and that he really understood and meant to make the transfer and was a free agent in the transaction.” The relationship between the donor and the donee does not necessarily preclude the making of a transfer.” In Ismail Mussajee Mookerda v. Hafiz Bon, the mother who was living with her daughter made a gift of her properties to the daughter disinheriting her son whose antecedents were not good and who was on terms of hostitlity to the mother. In view of these facts the gift in favour of the daughter was considered natural and affirmed. Their Lordships said that the “mere relation of daughter to mother suggested nothing in the way of special influence or control by the daughter.”

15. Burden of proof --  The burden of proving that a contract is vitiated by undue influence is on those who set up the plea. Section 16(3) of the Indian Contract Act deals with the three aspects. (1) that the relation subsisting between the parties should be such that one of the party is in a position to dominate the will of the other, (2) the dominant party obtains an unfair advantage over the other and (3) that the dominant party uses the dominant position to obtain that unfair advantage. The party who pleads undue influence has in the first instance to prove only the first and second ingredients.

16. The leading case on this question of onus is Ragunath Prasad v. Sarju Prasad. (1923) L.R.51 I.A.101 : 46 M.L.J. 3 to (P.C) Here Lord Shaw says “Error is sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties. Were they such as to put one in a position to dominate the will of another?” In other words it is only when you establish that the party deriving the benefit was in a position to dominate the other, the question will arise whether the position has been used to obtain an unfair advantage.

17. Section 111 of the Evidence Act enunciates the rule. It says “Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.”

18. The foregoing principles are also embodied in Section 61 of the Indian Succession Act and in Section 89 of the Indian Trust At. The undue influence which renders contracts or transfers voidable will invalidate Wills under Section 61 of the Indian Succession Act. Under Section 89 of the Indian Trusts Act, trustees are similarly prevented from retaining the advantages gained by them as trustees to the detriment of the beneficiary.