Sunday, January 25, 2009

Big Question of Transparency- Disclosure of Answer Sheets

The passage of the Right to Information Act in 2005 promised to usher in the age of transparency in India. The new Act was expected to remove the veil of secrecy shrouding public offices. Such was the hope in any case. What has actually been achieved so far points to a different story altogether. The situation is especially bleak when it comes to the disclosure of answer-sheets by public services recruitment commissions, education councils and universities.

The universities and other agencies, who conduct examinations, oppose the move to disclose answer sheets on the ground that the entire examination system will collapse. They tried to find out ways and means in different provisions under Right to Information Act and even beyond to keep answer sheets outside the purview of the Act. On one occasion, one of India’s most prestigious universities, Delhi University, in reply to an application under Right to Information Act seeking copies of the answer sheets of an applicant, informed him that the answer sheets could not be disclosed as the same was exempted from disclosure under section 8(1) (a). Under this provision any information, which may affect the sovereignty, integrity, and security of India cannot be disclosed. It is still a mystery as to how the disclosure of the answer sheets to the applicant can affect the sovereignty and integrity of the country. How an innocuous answer sheet can cause security threat to the country is something the University did not care to explain.

The Information Commissions all across the country have also not been adopting a consistent and uniform approach on the issue of disclosing answer sheets under the Right to Information Act. Central Information Commission has adopted an approach that answer sheets of school examinations and some competitive examinations can be disclosed, but the answer sheets of university and board examinations can not be disclosed as it would result in rendering the system unworkable. This approach of the Central Information Commission was taken as a defence in a case in Calcutta High Court, when Pritam Rooj, an applicant sought copies of his answer sheets from Calcutta University.

The judgment in Pritam Rooj versus Calcutta University (AIR 2008 CAL 118) is a landmark judgment in this regard as it has rejected the contention of the university that the disclosure of the answer sheet will render the system unworkable and ordered the university to disclose the answer sheet to the applicant. The Court also rejected the approach of the Central Information Commission which allowed to disclose of the answer sheets of certain examination, but disallowed to disclose answer sheets of other examinations.

There are two important aspects on which the High Court has passed its judgment. First and foremost is the issue of disclosure of one’s own answer sheets to an applicant, and another, which is equally important, the duty of the Public Information Officer to give a reply in accordance to the Right to Information Act and to provide details of the Appellate Authority in its reply. Pritam Rooj, who was a very meritorious student, obtained only 28 marks in paper V of his final year examination of B. A. (Mathematics) Honours. As a result, he could not get admission in some higher education course. Aggrieved and not satisfied with the result, he filed an application under the Right to Information Act seeking inspection of the answer sheet and obtaining its copy. In its reply, the Public Information Officer informed him that the university “has decided not to allow inspection of the answer sheets”. In his reply, the detail of the Appellate Authority was also not provided. Pritam Rooj, instead of filing appeal/ complaint under the Right to Information Act, directly approached the High Court and filed a writ.

During the hearing of the writ petition of Pritam Rooj at Calcutta High Court, Calcutta University contended that as Pritam did not exhaust the remedy of appeal/ complaint under Right to Information Act, his writ petition is immature and cannot be entertained by the Court. The basic argument behind this was that the writ petition in any High Court cannot be filed, if there is any alternative remedy available to the applicant. Calcutta high Court held that under section 7 (8) of Right to Information Act, while rejecting the application of the applicant, Public Information Officer should communicate to the person making the request, the reasons for such rejection; the period within which an appeal against such rejection may be preferred; and, the particulars of the appellate authority. The reply of the Public Information Officer of the Calcutta University lacked on all these three counts. The communication from Public Information Officer only informed the applicant that the “it has been decided” that inspection of the answer sheets will not be allowed. In this way, the Public Information Officer has merely, communicated the decision of the university. Public Information Officer has not made any decision on disclosure or non- disclosure of the answer sheet. He also did not inform the particulars of the Appellate Authority and the period in which the appeal can be preferred by him. Court, therefore, held that the alternative remedy that would otherwise have been available to the petitioner herein is, in the present case, an illusory right. In not furnishing the particulars of the appellate authority, the Public Information Officer has acted in derogation of the command of Section 7 (8) (iii). It is not as if in every case that there is a fixed appellate forum that a person aggrieved by the manner of disposal of his request may otherwise be aware of. Section 19(1) of the said Act provides that an appeal will lie to such officer who is senior in rank in the public authority to the Public Information Officer who disposed of the request. The appellate authority would vary with each public authority and it is for such purpose that Section 7 (8) (iii) has been engrafted and assumes more significance than being a routine matter where there is a general appellate forum to receive appeals from all disposals of requests.

Furthermore the expression in the reply of the Public Information Officer, "it has been decided" betrays a general acceptance by the public authority (here, the University) of the principle that answer sheets do not fall within the definition of “information” for any request to obtain them being entertained from an examinee. Court also observed that in light of the decision of the Central Information Commission, that disallows the disclosure of answer sheets, usual process of appeal and complaint under Right to Information Act, would be an exercise in futility. Even if the decision of the Central Information Commission is not binding on the state Information Commission, the decision of the Central Information Commission can be seen to be of such persuasive value that would render the right of appeal and complaint, meaningless.

Thus, the Court allowed the appeal even without Pritam Rooj exhausting the appeal and complaint remedy available to him under Right to Information Act.

On the issue of the disclosure of the answer sheets, Calcutta University argued that the applicant is not required to know anything about the answer sheet, once he submitted it after the examination, except the marks obtained to him and in some exceptional cases, the break-up of the marks in the paper. Disclosing the answer sheet would open a floodgate of requests and lead to an unworkable situation and an undesirable lack of finality and timeliness upon the possible protests for half marks being missed out here and there. Further, the disclosure of the answer sheets, the university contended, would expose its examiners who the University ought to protect. The last substantial ground urged by the University is one under Section 8 (1) (b) of the Right to Information Act which provides that there shall be no obligation to furnish any information which has been expressly forbidden to be published by any Court of law or tribunal or the disclosure of which may constitute contempt of Court. The University argued that in the many pronouncements of the Supreme Court, there are observations that answer sheets should ordinarily not be made available to examinees and observations to the effect that examinees cannot be associated with the process of evaluation of their answer sheets.

Calcutta High Court rejected all these arguments. On the issue of floodgate of the requests, the Court observed that this argument appears to be an argument of desperation. While comparing with the right of judicial review available to all, the Court observed that only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties. The Court, therefore, found no force in this argument of the University.

On the issue of applicability of section 8 (1) (b) of the Right to Information act, the Court observed that the disclosure of answer sheets was not considered, by Supreme Court, in the light of the Right to Information Act, which is the subject-matter of the present proceedings, even if it is accepted that the Right to Information Act only elucidates on the right originally guaranteed by the Constitution. Right to Information act, as a matter of fact, guarantees and enlarges the basic and fundamental right as guaranteed under the Constitution of India, and its primary purpose is to encourage transparency and curb corruption. Further, subject to the legislation being within the bounds of constitutional propriety, the legislature may bring an enactment to undo a view expressed by Court, for notwithstanding the contemporary fading demarcations of the functions of the several organs of State, the Court may have to yield to the legislature in the business of law-making as it is the vocation of the one and the subject of scrutiny and application of the other, the Court observed.

On the issue of protecting the examiners, the Court observed that as much as an examining body may owe an obligation to its set of examiners, it owes a greater fiduciary duty to its examinees. The examinees are at the heart of a system. The examining body and the examiners are there to cater the examinees. Striking a comparison the court observed that if it is the right of a voter, for the little man to have the curriculum vitae of the candidates who seek his insignificant vote; the right of the examinee is no less to seek inspection of his answer sheet.

Court also negated the contention of the Central Information Commission that disclosure of answer sheets would render the entire system unworkable. The Court observed that by this contention, the Commission has discovered an exemption not expressly provided for in the Right to Information Act to deny information despite accepting that the words used in the said Act could not be read to be a bar to the right asserted thereunder. Court observed that the disclosure of answer sheets and for that matter, any information, cannot be denied if the disclosure is exempted under section 8 of the Right to Information Act. As a rule, the Court further observed that the information has to be supplied unless it is exempted. If the information is refused, the reason for refusal has to be found in Section 8 and nowhere else.

Pointing out the benefit of disclosing answer sheets to the examinees, Calcutta high Court also observed that a look at his [examinees] evaluated answer script can serve the wonderful purpose of pointing out his mistakes − whether or not the evaluated paper marks such mistakes − clarifying his doubts and helping him to know once and for all, what he wrote and what he did not. Disclosure of answer sheets would help him in improving his quality of answers in future and make the examination system more beneficial to the examinees. An examinee, who has written hurried answers and solved problems under examination conditions sometimes several months before he gets the mark sheet, does not really "know" his answers. His memory of what he wrote will also not be complete or accurate. He may not even have a clear recollection of what he has recorded in his answers. Alternatively, he may feel that he has written something that he actually has not. His silly mistakes, graphical or grammatical errors and oversights may not be obvious to him. With the disclosure of answer sheets to him, it would be a great help for the examinee to point out his errors and omissions that he can improve upon, while appearing in future exams. Thus, by assessing the achievement of the student through examination and then disclosing the answer sheets to him would help him in understanding the areas where he need to improve to excel in his endeavours and foster meaningful proliferation of knowledge.

Further, the court also interpreted the disclosure of answer sheet as a constitutional right of the examinee. In the words of the court “If inspection of answer scripts is denied to the examinee, the spirit of the Constitutional right to expression and information may be lost. The knowledge-builder's -the University's bid to perpetuate the draconian, elitist, one-sided right to know and judge and rule without being open to question or accountable to the examinee cannot be encouraged. For a system to foster meaningful proliferation of knowledge, it must itself be crystal clear to its core.”

In final words of the Court, “Whether it is on the anvil of the legal holy trinity of justice, equity and good conscience, or on the test of openness and transparency being inherent in human rights, or by the myriad tools of construction, or even by the Wednesbury yardstick of reasonableness, the State Public Information Officer's rejection of the writ petitioner's request to obtain his answer script cannot be sustained. The University will proceed to immediately offer inspection of the paper that the petitioner seeks.”

© 2008, Divya Jyoti Jaipuriar

7 comments:

asdlifeisstrange said...

Sir,
I am a student of BPUT the technical university of orissa. I have supposedly failed in a paper. I just wanted to know can i seek to get the photocopy of my answer sheet. if yes then how, here i want to remind you that i might not be a very good student as per the records but as u know there are certain papers in which one knows that he or she has done well. This was one such kind of a paper. By the way is there a time limit one need to apply for the photocopies after publication of results.

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