In a landmark Judgement, the Calcutta High Court has held that Council for the Indian School Certificate Examinations [popularly called as ICSE] is not a Public Authority under RTI Act, 2005 and is not bound to disclose the evaluated answer books.
The Petitioner had filed the Writ Petition challenging an order rejecting disclosure of information under Right to Information Act, 2005 by the India School Certificate Examinations, on the ground that the respondent authority is not a public authority under the statutory scheme of Right to Information Act, 2005.
The Petitioner, father of minor child, after receiving the statement of marks and pass certificate on May 6, 2016 felt extremely aggrieved as the marks and grade awarded was not at all upon the mark and unexpected. On being aggrieved the petitioner made an application under Right to Information Act, 2005 on June 1, 2016 with a prayer for issuance of original answer scripts. However, the Application was rejected for the reason that the said Council for the Indian School Certificate Examinations is not a public authority and as such is not covered within the meaning of section 2(h) of the said Act, 2005.
The petitioners in the Writ Petition contended that Council is discharging a public function in the domain of education having National impact and also owes its allegiance to its State authority as contemplated under the expression ‘State’ enumerated under Article 12 of the Constitution of India. As such, the Council is covered by the expression public authority as perceived in the said Act, 2005. It was also pointed out Class-X ICSE Examination of the Council has been expressly recognized by the Government of India and as such, the Council is a public authority because various other Boards, Universities, Councils including CBSE do recognize the Council. Accordingly, the Council cannot deny the disclosure of the information as prayed by the petitioner by virtue of Section 2(h) of the RTI Act, 2005.
The Court noted that Council for the Indian School Certificate Examinations was established in 1958 by the University of Cambridge Local Examinations Syndicate with the assistance of the Inter-State Board for Anglo-India Education. It is registered under the Societies Registration Act No. XXI of 1860. Thereafter, upon discussing the constitution and functioning of the Council, the Court came to conclusion that Council is not a Public Authority as defined under the RTI Act and observed as under:
“ …… this Court is, thus, of the view that the Council is not a public authority or body or Institution of self- government established or constituted under the Constitution, under the law enacted by the Parliament or by the State Legislature or body owned, controlled or substantially financed, directly or indirectly by the fund provided by the appropriate Government. Therefore, it does not come within the purview of a public authority under Section 2(h) of the said Act.”
The Court though agreed with the Petitioner that an answer sheet is “information” within the RTI Act, however but held that in the present case the Council origin being established by the University of Cambridge legal with the assistance of the interested Board for Indian by Societies Registration Act No. XXI of 1860 does not fall within the definition clause of 2(h)(d)(ii) of RTI Act and cannot be said to be a public body in possession of a document or record and as it is not at par with the Central Board of Secondary Education and is not a State instrumentality within the meaning of Article 12 of the Constitution.
The Court also distinguished the position of Council with CBSE since the CBSE Board is a public body duly constituted by the Central Government under the Ministry of Human Resources Development. The Council is established under the Societies Registration Act, 1860 is not under the control of the Ministry of Human Resource Development. Therefore, on account of its constitution and functioning the respondent no. 2 Council is not covered by the definition of public authority under Section 2(h) of the RTI Act.
The Court then disposed off the Writ Petition.
Though, the Judgement may be correct interpretation of law, however, why this discrimination between a “CBSE” and a “ICSE” student? An ICSE student being denied the right to information, is this not violation of Article 14 of Constitution of India.
If the provisions of law is such, which excludes the body involved in discharging charitable and public function at National Level from the scope of RTI Act, 2005, then it is need of the hour that a legislative amendment should be brought within the RTI Act, 2005 specially in matters relating to academic performance, while excluding other matters of administration and management. This will help in accommodative justice.