IMPLICITY

The RTI and NALSAR – The Case For Examination Of Answer Scripts

Posted in accountability by Gautam on December 4, 2009

End Semester results in NALSAR recently had scandalous undertones to it with disclosures that marks weren’t commensurate with one’s performance in the exams. The issue is cause for concern owing to suspicion as to whether identity of the students was really protected while correcting answer scripts.

The intricacies of the matter apart, Ipshita Ahuja tries to explore the reaches of the RTI Act in figuring whether ‘answer scripts’ are in fact ‘information’ that must be disclosed by the University.

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The Right to Information Act, 2005, has been used in very many interesting ways since its enactment. I was editing a book on the RTI Act as a part of my internship when I started to wonder whether something could be done about the abovementioned answer script situation vis-à-vis the RTI Act.

Section 3 of the RTI Act, 2005, gives any citizen of India the Right to Information. It empowers the citizens of India to seek information from various authorities, and Section 2(j)(i) of the Act gives the right of inspection of work, documents and records. The ambit of the RTI Act is however limited to public authorities. Section 2(h) defines public authority, and of Section 2(h)(d) includes any institution of self-government established under any law under the State Legislature. The Kerala High Court in the case of M.P. Verghese v. Mahatma Gandhi University & Others [AIR 2007 Ker 230] held that that all universities that receive substantial funding from the state, are “public authority” and are thus within the ambit of the Right to Information Act. Thus, NALSAR falls squarely within the ambit of being a public authority since it was established under the National Academy of Legal Studies and Research University Act (Andhra Pradesh Act 34 of 1998) of the Andhra Pradesh State Legislature, and the M.P. Verghese judgment simply re-iterates this.

Answer scripts also fall under the purview of ‘information’, since Section 2 (f) extensively lists out the various items included under ‘information’ – any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models and data material held in any electronic form is deemed to be ‘information’.

Thus, any person can ask for answer scripts by way of a written application with the appropriate fee to the Public Information Officer of the Public Authority as provided for under Section 6(1). On said application, by virtue of Section 7(1), the PIO is obliged to provide the information in thirty days. Section 6 (2) also specifies that the applicant is not required to furnish any reason whatsoever while asking for any piece of information. There is an ongoing debate about the payment of further fees mentioned in Section 7(3); in our case, I doubt any of us has an idea about amount of appropriate fee which has to be paid under Section 6, let alone further fees which may/may not be liable to be charged.

There are recent judgments which uphold the right to look at answer scripts. The case University of Calcutta and Ors.v. Pritam Rooj,AIR 2009 Cal 97 makes for an interesting read. The petitioner, Pritam Rooj, a student who had undertaken (and passed) the B. Sc Part II examination conducted by the University. However, being dissatisfied with his marks in two papers, he made an application under the RTI Act to inspect his papers. The Registrar of the University, also its Public Information Officer, turned down his request. Pritam preferred the writ petition seeking production of the answer scripts before the Hon’ble Court for revaluation/re-examination by an expert examiner as also for withdrawal/recalling of the order of rejection dated. The single judge directed the Respondent to produce the answer sheets; resultantly, the Respondent appealed before a Division Bench of the Calcutta High Court.

The Division bench dealt with two questions -whether answer scripts written by an examinee in course of a public examination is comprehended within the definition of ‘information’ under the RTI Act, and if the answer to the first question is in the affirmative, whether an examinee is entitled to these answer scripts i.e., can access be withheld by the public authority on any valid ground traceable in the RTI Act?

As regards the first issue, the Bench held that an assessed/evaluated answer script of an examine writing a public examination conducted by public bodies like the WBBSE, the CBSE or the Universities which had been created by statutes comes within the purview of ‘information’ as defined in the RTI Act and there was no justifiable reason to construe Section 2 (f) in a constricted sense.

In answer to the second question, the Bench held that there is no ground under which the Respondent University could deny the Petitioner an examination of his answer script. The Bench said that each and every step in a process of examination of a University or Board would be in a public domain and would be in public interest. The Bench also observed that if an examiner’s action is made the subject of public scrutiny it might ensure assessments that are fairer, more reasonable, and absolutely free from arbitrariness and defects.

The Division bench also discussed the contention that the production of answer sheets were against the finality attached with a public examination, and such finality was in the interest of the public (which, incidentally, was one of the grounds relied upon by the Supreme Court in  , AIR 2007 SC 3098). The Court said that inconvenience or unworkability were no grounds to deny information once the answer scripts came within the ambit of ‘information’; denial was only allowed under the exceptions provided for under Section 8, and these did not fall within those categories. The Bench thus ordered the Respondents to produce the answer scripts.

In the 2009 judgment by Ravindra Bhat, J., in the case of ICAI v. Central Information Commissioner and Anr., in W.P. (C) 8529/2009, the Respondents’ contention that since the law as regards answer scripts had been laid down by the Supreme Court, and the candidates who sought the copies of their answer sheets could not do so, was discussed. The cases cited were in Secretary West Bengal Council for Higher Secondary Education v. Ayan Das, AIR 2007 SC 3098 and President, Board of Secondary Education, Orissa and Anr. v. D. Suvankar and Anr., 2007(1) SCC 603.

The Court stated that the decisions in both these cases were similar; the context was vide directions by High Court, requiring revaluation/re-verification in the Suvankar case and direction sto reassess through another examiner in Ayan Das’s case. Both these did not mention or discuss the RTI Act, and the Court was thus not examining information applications under the RTI Act.

The court also discussed the second contention that since the Supreme Court held that there is no right to claim disclosure of answer sheets or copies, and the same is not part of the Right to Freedom of Expression and, therefore, implicitly excluded from the RTI Act. it was stated that no rule or interpretation or judgment of Supreme Court was discussed or relied on the point that the ruling in Suvankar’s case (supra) excluded the right to access answer sheets, which would otherwise fall within the expression and, therefore, would fall within the purview of the RTI Act.

The NALSAR website does provide the name of the Public Information Officer, a step up from the days, just a few months ago, where it did not even have a PIO. However, besides publishing the accounts for one year, little else has been achieved. The ambit of the RTI Act can be extended far beyond procuring answer scripts; there are several unanswered questions to which we, as students, should be able to procure answers by way of the RTI Act. We should, but don’t ever, demand answers to so many questions, such as how much does the NALSAR account really contain? What was done with the difference of amount after several professors left the employment of the university, and faculty members being paid considerably lesser joined in? Exactly how much of the money we pay towards the Mess actually get utilized? Section 4(1) (b)(x) and (xi), in fact, make it mandatory for public authorities to publish the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations, and the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made respectively within 120 days of the operation of the act. The Pritam Rooj judgment also states that it is necessary for every public authority to disseminate the information as stated in Section 4 of the RTI Act.

Sub-section 3 specifies that the information specified in sub-section 1 should be disseminated widely so that it is easily accessible, and the explanation to this sub-section defines “dissemination” as making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority. Clearly, nothing of this sort has been implemented at NALSAR. The website does include a tab on The RTI Act; however, besides giving a bare act of the RTI Act, it provides nothing, for the link to NALSAR and the RTI turns up an error.

The RTI Cell is now unfortunately redundant, however, as individuals, we could, and should, demand much, much more than the information which is currently proffered to the student body.

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2 Responses

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  1. atulpatankar said, on December 5, 2009 at 3:38 pm

    The NALSAR has scant respect for RTI Act. If you are interested to know how and WHEN they appointed the PIO, please go through http://www.rtiindia.org/forum/18071-does-nalsar-comes-under-right-information-act.html.

    And about the answer sheets, each and every State Info Commission has given different decisions. Maharashtra Chief IC Dr Suresh Joshi has ruled that though the legal position requires the answer sheets to be supplied, looking at large number of students asking for such a right, presently these need not be supplied!

  2. Ipshita said, on December 5, 2009 at 7:36 pm

    I agree with Atul, NALSAR does indeed has little, if any, respect for the RTI Act. Also, the issue of opening a floodgate of answer sheets was the ‘finlaity’ argument; the HC had ruled that inconvenience to the University as to a large number of students asking for answer sheets was no ground for non-disclosure. I’ll read what the Maharashtra CIC had to say about this, thanks!


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