[HumJanenge] Fwd: The Supreme Court decision on answer papers

---------- Forwarded message ----------
From: RTI Prekshak <rtiprekshak@gmail.com>
Date: Sat, 13 Aug 2011 09:30:40 +0530
Subject: The Supreme Court decision on answer papers
To: "C J Karira" <cjkarira@gmail.com>

There is considerable elation over the Supreme Court's decision on the
answer papers. Is there anything to celebrate?

The Supreme Court judgement is attached for convenience

*The following obiters may create a lot of damage and encourage
arbitrariness in denial of information*

*B. * Page 47

33. Some High Courts have held that section 8 of RTI Act is in the nature of
an exception to section 3 which empowers the citizens with the right to
information, which is a derivative from the freedom of speech; and that
therefore section 8 should be construed strictly, literally and narrowly.
This may not be the correct approach. The Act seeks to bring about a balance
between two conflicting interests, as harmony between them is essential for
preserving democracy. One is to bring about transparency and accountability
by providing access to information under the control of public authorities.

The other is to ensure that the revelation of information, in actual
practice, does not conflict with other public interests which include
efficient operation of the governments, optimum use of limited fiscal
resources and preservation of confidentiality of sensitive information. The
preamble to the Act specifically states that the object of the Act is to
harmonise these two conflicting interests. While sections 3 and 4 seek to
achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the
second objective.

Therefore when section 8 exempts certain information from being disclosed,
it should not be considered to be a fetter on the right to information, but
as an equally important provision protecting other public interests
essential for the fulfilment and preservation of democratic ideals.

34. When trying to ensure that the right to information does not conflict

with several other public interests (which includes efficient operations of
the

governments, preservation of confidentiality of sensitive information,

optimum use of limited fiscal resources, etc.), it is difficult to visualise
and enumerate all types of information which require to be exempted from
disclosure in public interest. The legislature has however made an attempt
to do so. The enumeration of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier Act that is section 8 of
Freedom to Information Act, 2002. The Courts and Information Commissions
enforcing the provisions of RTI Act have to adopt a purposive construction,
involving a reasonable and balanced approach which harmonises the two
objects of the Act, while interpreting section 8 and the other provisions of
the Act.

*C.* Page 52

37. The right to information is a cherished right. Information and right to
information are intended to be formidable tools in the hands of responsible
citizens to fight corruption and to bring in transparency and
accountability. The provisions of RTI Act should be enforced strictly and
all efforts should be made to bring to light the necessary information under
clause (b) of section 4(1) of the Act which relates to securing transparency
and accountability in the working of public authorities and in discouraging
corruption. But in regard to other information,(that is information other
than those enumerated in section 4(1)(b) and (c) of the Act), equal
importance and emphasis are given to other public interests (like
confidentiality of sensitive information, fidelity and fiduciary
relationships, efficient operation

of governments, etc.). Indiscriminate and impractical demands or directions
under RTI Act for disclosure of all and sundry information (unrelated to
transparency and accountability in the functioning of public authorities and
eradication of corruption) would be counter-productive as it will adversely
affect the efficiency of the administration and result in the executive
getting bogged down with the non-productive work of collecting and
furnishing information. The Act should not be allowed to be misused or
abused, to become a tool to obstruct the national development and
integration, or to destroy the peace, tranquility and harmony among its
citizens. Nor should it be converted into a tool of oppression or
intimidation of honest officials

striving to do their duty. The nation does not want a scenario where 75% of
the staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular
duties.

*Conclusion*

38. In view of the foregoing, *the order of the High Court directing the
examining bodies to permit examinees to have inspection of their answer
books is affirmed, *subject to the clarifications regarding the scope of the
RTI Act and the safeguards and conditions subject to which 'information'
should be furnished. The appeals are disposed of accordingly.

The Supreme Court has only directed *inspection *of the answer books, not
giving copies. If even ten thousand students apply for inspection of answer
books, can anyone visualize how this could be done in a limited time frame?
It is possible to have a system which can deliver even a million
photocopies,-if required,- within 30 days. But to arrange for an inspection
of answer papers by even ten or twenty thousand students is seeming
impossible. This  judgement may be impossible to implement, and the obiters
may have a deadly sting for RTI.

--
RTIprekshak