KERALA PUBLIC SERVICE COMMISSION Vs. STATE INFORMATION COMMISSION

JUDGEMENT

(1.) These Writ Petitions raise the question of applicability of the Right to Information Act, 2005, hereinafter referred to as the "R.T.I. Act" to the Kerala Public Service Commission, hereinafter, "PSC", for short. These matters are referred to the Division Bench noticing an apparent conflict between the decisions of this Court in Public Information Officer, University of Calicut and Anr. v. State Information Commission,2010 1 KerLT 69 (C. No. 82) :, 2010(1) KHC 2, for short, "UNICAL", and Treesa Irish v. Central Public Information Officer, 2010 3 KerLT 965, 'TREESA", for short.

(2.) The PSC challenges different decisions of the State Information Commission, "SIC", for short, overruling its stand that information with the P.S.C. cannot be accessed under the R.T.I. Act and that the answer scripts, marks awarded, including interview marks and other details touching the process of examination and interview cannot be made available, except to the extent provisions are made for such access by the regulations and decisions of the PSC.

(3.) In support of the Writ Petitions, Adv. Alexander Thomas, the learned standing counsel for the P.S.C. argued that the substantive source of the right to information is the constitutional provision in Article 19(1)(a) and hence, what is not available as part of that right cannot be treated as available under the R.T.I. Act. He argued that R.T.I. Act applies only to the extent of the concept of "information" as deducible from Article 19(1)(a) of the Constitution and not beyond. He, therefore, said that if a particular information would fall beyond the pale of Article 19(1)(a), the same would not be accessible under the R.T.I. Act. Making reference to the decisions of this Court in Thalapalam Service Co-operative Bank Ltd. v. Union of India,2009 2 KerLT 507 (Thalapalam I), Thalapalam Service Co-operative Bank Ltd. v. Union of India, 2009 3 KerLT 1001 (Thalapalam II) and S.N. College v. State of Kerala,2010 1 KLT 691 (S.N. College), it was argued that it has been held in those cases that the concept of information under R.T.I. Act is with reference to Article 19(1)(a) of the Constitution. He accordingly argued that beyond that, the provisions of the R.T.I. Act cannot be extended. He said that this restrictive approach has to be applied since it has been held by the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, 1984 KerLT 55 (C. No. 94) SC : (1984) 4 SCC 27, hereinafter, Paritosh, that in terms of the Constitution, there is no right to information, including as regards answer scripts. He said that the law laid by the Apex Court in that regard is also that if such right is recognized, it would lead to acceding to a further right to demand revaluation and such situation would necessarily lead to uncertainty, lack of finality and administrative inconvenience to the examining bodies. He also pointed out that even in terms of the Constitution, principles of secrecy and public interest immunity would stand to advise that information in relation to P.S.C., in particular, matters relating to examinations, ought not to be released as information, invoking the provisions of the R.T.I. Act. He also made reference to Secy., W.B. Council of Higher Secondary Education v. Ayan Das, 2007 8 SCC 242, Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, 2004 6 SCC 714, Board of Secondary Education v. Pravas Ranjan Panda, 2004 13 SCC 383, H.P. Public Service Commission v. Mukesh Thakur, 2010 6 SCC 759, Sidhik v. State of Kerala, 2010 1 KerLT 113 and the decision of the Apex Court in Kerala Public Service Commission v. Narayanan Kunchumbidukka Civil Appeal No. 461 of 2008 : Ext.P6 in W.P.(C). 33718/2010, to argue that the said decisions categorically lay down that access to information in relation to examination materials is not permissible except to the extent where the examining body permits such access on the basis of regulations or decisions that it has taken for the management of affairs in relation to examinations. Adv. Alexander Thomas further argued that the Commission has a fiduciary role qua the society in public interest and it holds and acts in trust; in public interest; in a fiduciary capacity qua the public at large. He said that the term "fiduciary capacity" in Section 8 of the R.T.I. Act needs to be so understood. He argued that information regarding examiners and others involved in the process has to be maintained in secrecy. Otherwise, it would lead to different situations which would be susceptible even to corruption. Dilating on the concept of fiduciary status, he argued that the restricted concept of fiduciary relations as understood in private law is not applicable and the concept of fiduciary relations in the context of public trust and public involvement should be a larger concept.