The Institute of Chartered Accountants of India vs Shaunak H. Satya

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(SC) 840

IN THE SUPREME COURT OF INDIA
R.V. Raveendran and A.K. Patnaik, JJ.
Appellants: The Institute of Chartered Accountants of India
Vs.
Respondent: Shaunak H. Satya and Ors.
Civil Appeal No. 7571 of 2011 (Arising out of SLP (C) No. 2040/2011)
Decided On: 02.09.2011

Advocates Appeared:
For Appellant/Petitioner/Plaintiff: K.K. Venugopal, Ramji Srinivasan, Sr. Advs. Pramod Dayal, Nikunj Dayal and Rakesh Agarwal, Advs.
For Respondents/Defendant: Rohan Rajadhyaksha and Ranjeeta Rohtagi, Advs.

Headnote:A) CHARTERED ACCOUNTANTS ACT : ., S.3, CHARTERED ACCOUNTANTS REGULATIONS : Reg.38, Reg.39(2), Reg.39(4), Reg.42, CONSTITUTION OF INDIA : Art.12, COPYRIGHT ACT : S.51, S.52, S.52(1), RIGHT TO INFORMATION ACT : S.10, S.11, S.2, S.3, S.4, S.4(1), S.8, S.8(1), S.8(3), S.9:- The important questions arising out of this appeal are as fallows:- (i) Whether the instructions and solutions to questions (if any) given by ICAI to examiners and moderators, are intellectual property of the ICAI, disclosure of which would harm the competitive position of third parties and therefore exempted under Section 8(1)(d) of the RTI Act?
       (ii) Whether providing access to the information sought (that is instructions and solutions to questions issued by ICAI to examiners and moderators) would involve an infringement of the copyright and therefore the request for information is liable to be rejected under Section 9 of the RTI Act?
       (iii) Whether the instructions and solutions to questions are information made available to examiners and moderators in their fiduciary capacity and therefore exempted under Section 8(1)(e) of the RTI Act?
       (iv) Whether the High Court was justified in directing the Appellant to furnish to the first Respondent five items of information sought (in query No. 13) relating to Regulation 39(2) of Chartered Accountants Regulations, 1988?
       Answers to each of the above questions as held by the court are as fallows:-
       i) After examinations are held there is no bar in publishing the questions papers, solutions etc. as claimed by the appellant.
       ii) Furnishing of information required does not constitute any infringement of copy right.
       iii) Instructions issued to the examiners are the model papers given to them is a matter of fudicial nature between the examiner and the Institute and hence exempted from Section 8 of Right to Information Act.
       iv) With regard to the information sought in respect of the revision, the ICAI having stated that there is no data available with it, it is not bound to give any information.
       Held the authorities under RTI Act has to maintain a proper balance between the information sought for reducing corruption and bring transparency in the system. Appeal partly allowed.

JUDGMENT

R.V. Raveendran, J.

1. Leave granted.

2. The Appellant Institute of Chartered Accountants of India (for short 'ICAI') is a body corporate established under Section 3 of the Chartered Accountants Act, 1949. One of the functions of the Appellant council is to conduct the examination of candidates for enrolment as Chartered Accountants. The first Respondent appeared in the Chartered Accountants' final examination conducted by ICAI in November, 2007. The results were declared in January 2008. The first Respondent who was not successful in the examination applied for verification of marks. The Appellant carried out the verification in accordance with the provisions of the Chartered Accountants Regulations, 1988 and found that there was no discrepancy in evaluation of answer scripts. The Appellant informed the first Respondent accordingly.

3. On 18.1.2008 the Appellant submitted an application seeking the following information under 13 heads, under the Right to Information Act, 2005 ('RTI Act' for short):

1) Educational qualification of the examiners & Moderators with subject wise classifications. (you may not give me the names of the examiners & moderators).

2) Procedure established for evaluation of exam papers.

3) Instructions issued to the examiners, and moderators oral as well as written if any.

4) Procedure established for selection of examiners & moderators.

5) Model answers if any given to the examiners & moderators if any.

6) Remuneration paid to the examiners & moderators.

7) Number of students appearing for exams at all levels in the last 2 years (i.e. PE1/PE2/PCC/CPE/Final with break up)

8) Number of students that passed at the 1st attempt from the above.

9) From the number of students that failed in the last 2 years (i.e. PE1/PE2/PCC/CPE/Final with break up) from the above, how many students opted for verification of marks as per regulation 38.

10) Procedure adopted at the time of verification of marks as above.

11) Number of students whose marks were positively changed out of those students that opted for verification of marks.

12) Educational qualifications of the persons performing the verification of marks under Regulation 38 & remuneration paid to them.

13) Number of times that the council has revised the marks of any candidate, or any class of candidates, in accordance with regulation 39(2) of the Chartered Accountants Regulations, 1988, the criteria used for such discretion, the quantum of such revision, the quantum of such revision, the authority that decides such discretion, and the number of students along with the quantum of revision affected by such revision in the last 5 exams, held at all levels (i.e. PE1/PE2/PCC/CPE/Final with break up).

(Emphasis supplied)

4. The Appellant by its reply dated 22.2.2008 gave the following responses/information in response to the 13 queries:

1. Professionals, academicians and officials with relevant academic and practical experience and exposure in relevant and related fields.

2&3. Evaluation of answer books is carried out in terms of the guidance including instructions provided by Head Examiners appointed for each subject(s). Subsequently, a review thereof is undertaken for the purpose of moderators.

4. In terms of (1) above, a list of examiners is maintained under Regulation 42 of the Chartered Accountants Regulations, 1988. Based on the performance of the examiners, moderators are appointed from amongst the examiners.

5. Solutions are given in confidence of examiners for the purpose of evaluation. Services of moderators are utilized in our context for paper setting.

6. Rs. 50/- per answer book is paid to the examiner while Rs. 10,000/- is paid to the moderator for each paper.

7. The number of students who appeared in the last two years is as follow:

Month & Year

Number of students Appeared

PE-I

PE-II

PCC

CPE

FINAL

Nov., 2005

16228

47522

Not held

28367

May, 2006

32215

49505

Not held

26254

Nov., 2006

16089

49220

Not held

27629

24704

May, 2007

6194

56624

42910

23490

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2011 Supreme(SC) 840

IN THE SUPREME COURT OF INDIAR.V. Raveendran and A.K. Patnaik, JJ.Appellants: The Institute of Chartered Accountants of IndiaVs.Respondent: Shaunak H. Satya and Ors.Civil Appeal No. 7571 of 2011 (Arising out of SLP (C) No. 2040/2011)Decided On: 02.09.2011

Cases Referred (2)

IN THE SUPREME COURT OF INDIA
R.V. Raveendran and A.K. Patnaik, JJ.
Appellants: The Institute of Chartered Accountants of India
Vs.
Respondent: Shaunak H. Satya and Ors.
Civil Appeal No. 7571 of 2011 (Arising out of SLP (C) No. 2040/2011)
Decided On: 02.09.2011