Rajeev Kumar v. Central Information Commission

1. The Petitioner filed an online RTI application with the Public Information Officer[1] of Jamia Millia Islamia University[2] – Respondent No. 3 on 26th March, 2019, inter-alia seeking access to PhD thesis titled as ‘Studies on some nitrogen fixing genes of Azotobacter vinelandii’3 authored by a scholar, Mr. Umesh Kumar Bageshwar. In response, the PIO, vide “PIO” “JMIU” “PhD thesis” response dated 14th April, 2019, merely forwarded the reply dated 10th April, 2019, of the Librarian of the University which stated that “the said thesis has been put in absolute safe custody of the Librarian by order of the competent authority of the University,” without providing any response to the request as regards access to the PhD thesis. Dissatisfied, the Petitioner filed a first appeal which also was rejected by order dated 24th May, 2019 on the ground of Section 8(1)(d) of the Right to Information Act, 2005.[4]

2. The Petitioner then preferred a second appeal before Central Information Commission[5] impugning the decision of the First Appellate Authority. The CIC decided the appeal through order dated 12th April, 2021, the operative portion reads as under: “RTI Act” “CIC”

3. Aggrieved by the aforenoted decision, the Petitioner has filed the instant petition seeking a copy of or access to the PhD thesis.

4. Counsel for the Petitioner makes the following submissions: 4.[1] The CIC has failed to appreciate that the thesis submitted with JMIU is an academic document. It must always be open to public scrutiny for various purposes such as study, further research, testing plagiarism etc. and the refusal on the part of JMIU, is breach of its duties as the custodian of the thesis. 4.[2] As per the regulations of JMIU, specifically Rule 13(b) of Ordinance 9(IX), the University is bound to make every Ph.D thesis available without any exception. In terms of Section 13.[1] of the UGC (Minimum Standards and Procedure for award of M.Phil/Ph.D Degrees) Regulations, 2016, the University is supposed to submit the PhD thesis to UGC for hosting the same on INFLIBNET[6] in order to make it accessible to all other Institutions/Universities. Thus, the PhD document is not a confidential document or an intellectual property which cannot be shared. 4.[3] The PhD thesis was previously accessible, as evidenced by citations in other academic works. However, JMIU has now adopted an inconsistent stance, unjustifiably withholding access. 4.[4] The CIC has wrongly attached commercial value to an academic document by contending that the PhD thesis has gained immense commercial importance. No commercial value or importance can be attached to the PhD thesis as the same is only an academic research document, which must be mandatorily published and available to the public. 4.[5] The CIC has wrongly observed that disclosure of thesis would harm the competitive position of the stakeholders without clarifying as to who are the stakeholders. The author of the PhD thesis cannot in any way be regarded as a ‘commercial competitor’ whose commercial position could be harmed upon disclosure of such information. Even JMIU cannot be considered as a commercial competitor, who are only custodians of PhD Information and Library Network (INFLIBNET) Centre is a data network connecting university libraries and other information centres. thesis and must mandatorily publish the thesis.

5. Respondent No.3, on the other hand, in their counter affidavit oppose the request made in the petition. They submit that the PhD thesis sought by the Petitioner has gained commercial importance and involves intellectual property. As the same comes within the ambit of Sections 8(1)(d) of the RTI Act, the information sought by the Petitioner cannot be made available to him. That apart, they submit that the guidelines of the university with regards to submission of the thesis, relied upon by the Petitioner, can in no way override Section 8(1) (d) of the RTI Act. Analysis and Findings: Background: Concept of a PhD theses

6. A PhD thesis represents the culmination of years of dedicated scholarly research and is submitted as a requirement for the award of a doctoral degree. Its primary purpose is to contribute to the existing body of knowledge in a particular field, promote academic discourse, and enable further research. Other researchers can build upon the work presented in the thesis, using it as a foundation for their own studies. Therefore, transparency and accessibility are essential to these goals, as they facilitate validation, reproducibility, and the progress of scientific research, which are beneficial to both the academic community and society at large.

7. Universities, as custodians of knowledge, play an important role in preserving and disseminating PhD theses. They hold these documents in their libraries or repositories, making them available for academic purposes. They usually have policies regarding the access and distribution of these documents. In the present case, the relevant regulations of JMIU unequivocally mandate the accessibility of PhD theses. Rule 13 (b) of Ordinance 9(IX) of JMIU provides, “One of the soft copies of the thesis and the synopsis will be submitted by the Controller of Examinations to INFLIBNET digital depository and another for posting on the University’s portal.” There are no carve outs or exceptions to the aforenoted Rule. Similarly, the UGC (Minimum Standards and Procedure for Award of M.PHIL./PH.D Degrees) Regulations, 2016 also mandate the submission of an electronic copy of the Ph. D. thesis to the INFLIBNET digital depository, to make it accessible to all Institutions/Colleges. Together, these regulations, mandating it to be a public document, prevents the PhD thesis from being fully confidential. Therefore, the idea that a PhD thesis is inherently confidential would be contrary to the primary purpose of a PhD thesis and is not supported by either the regulations of JMIU or the UGC.

8. Against the above backdrop, the crux of the present dispute is whether the PhD thesis qualifies as ‘information’ under the RTI Act, and whether it can be withheld under the exemption provided in Section 8(1)(d).

9. The RTI Act defines “information” broadly, including any material in any form, such as records, documents, emails, opinions, and more. The Act applies to public authorities, including universities such as JMIU. Since a PhD thesis is a document held by the university, it falls under this definition. Under the RTI Act, any information held by or under the control of a public authority can be requested, unless it falls under the exemptions specified in the Act. JMIU’s refusal to disclose the information is premised on Section 8(1)(d) of the RTI Act. This provision specifically exempts disclosure only when the information constitutes “commercial confidence”, “trade secrets”, or “intellectual property”, and its disclosure would harm the competitive position of a third party. For information to be exempted under Section 8(1)(d), the public authority must satisfy a dual test: First, that the information falls within the categories of commercial confidence, trade secrets, or intellectual property; and second, that its disclosure would harm the competitive position of a third party. Thus, both elements of this dual test must be satisfied to justify withholding information under Section 8(1)(d) of the RTI Act. Merely asserting that the thesis involves intellectual property or holds commercial value does not suffice; there must be clear and cogent evidence that its disclosure would indeed harm the competitive position of a third party.

10. It is undisputed that a PhD thesis is often an intellectual property, comprising of both the university’s investment in resources or funding and the scholar’s original work. This creation enjoys protection under the Copyright Act, 1957, which grants the author exclusive rights to control reproduction, distribution, and adaptation of their work. However, in the Court’s opinion, mere existence of copyright does not automatically justify invoking Section 8(1)(d) to deny access to the information. Copyright law is not intended to curtail access to information; rather, it safeguards an author’s economic and moral rights. Section 8(1)(d) of the Act protects intellectual property that is at risk of being exploited. In the present case, JMIU has failed to substantiate how disclosure of the thesis, an academic document inherently meant to be published, to promote public knowledge and further research, in the name of the research scholar, would lead to a breach of copyright or harm the author’s competitive position. That apart, section 8(1)(d) of the RTI Act requires more than a mere assertion of intellectual property. It mandates evidence that disclosure would materially harm the competitive standing of a third party. Here, neither the author nor the university has demonstrated such harm. Therefore, the invocation of Section 8(1)(d) is untenable, as neither limb of the exemption’s dual test i.e., establishing both intellectual property and demonstrable harm, has not been satisfied.

11. That said, it must be acknowledged that certain circumstances may justify restricted access to a PhD thesis. While a thesis is fundamentally a contribution to collective academic knowledge, it may contain sensitive or proprietary information. For instance, research conducted under university auspices may yield inventions or discoveries with potential for patent protection. In such cases, premature disclosure—before a patent application is filed—could result in the thesis being treated as ‘prior art,’ thereby jeopardizing the patentability of the invention. This scenario highlights the fiduciary role universities often play, balancing their duty to protect the researcher’s interests with their mandate to promote academic transparency. Universities often have policies in place to manage the filing of patents for research conducted under their auspices. In order to maintain confidentiality, Universities may restrict access to a thesis until a patent application is filed to prevent the disclosure of potentially patentable inventions. Section 8(1)(d) of the RTI Act may, in such cases, serve as a valid safeguard to prevent competitive harm to the researcher or institution. Similarly, Section 8(1)(e), which exempts disclosure of information held in a fiduciary capacity, could apply where the university holds the thesis as a trustee of the scholar’s proprietary rights. However, even in these situations, the exemption is not absolute. The RTI Act expressly provides that larger public interest can override such exemptions.

12. In the present case, it must first be noted that the PhD thesis had already been published, as evident from the fact that the PhD thesis had been referenced in subsequent academic works which have been annexed with the present petition. So, this is not a situation where the scholar has sought temporary withholding of publication of the PhD thesis to prevent premature publication nor has JMIU produced any formal rules or regulations which provide for thesis withholding process.

13. That apart, neither JMIU nor the CIC has demonstrated that the thesis contains sensitive information necessitating restricted access, such as an unfiled patent or proprietary research. Instead, the Respondent No.3’s arguments rest on vague and unsubstantiated claims of “commercial importance” and “competitive harm,” which do not satisfy the requirements of Section 8(1)(d). To invoke this exemption, it is not sufficient to merely assert these claims; the University must substantiate them. Where no demonstrable harm to intellectual property or competitive interests is evident, withholding access to a thesis violates the purpose of academic research and the spirit of transparency enshrined in the RTI Act. Moreover, the author of a thesis, having submitted it to a public university, relinquishes the right to withhold its disclosure, as it becomes part of the academic repository of the institution. Similarly, the CIC’s observation that disclosure would harm the “competitive position of stakeholders” is equally unsubstantiated. It is unclear who these stakeholders are and how their competitive position would be jeopardized. Such speculative reasoning does not satisfy the threshold for invoking Section 8(1)(d).

14. Even assuming, for the sake of argument, that Section 8(1)(d) applies, Section 8(2) of the RTI Act allows disclosure if public interest outweighs the harm to protected interests. As discussed above, PhD theses are essential to the advancement of knowledge, serving as a foundation for further research, academic scrutiny and advancement of science, which serves a larger public interest. The Impugned order of CIC, however, fails to recognize or discuss this aspect. The decision to disclose PhD theses under RTI Act in such scenarios require balancing the need for transparency and public interest against the protection of sensitive information. Each case would need evaluation on its own merits considering the specific content of the thesis and the context of the request.

15. Furthermore, during the appeal proceedings before the CIC, JMIU has not filed any documents or guidelines in support of their assertions. The CIC has not based its decision on the records but on assumptions and rhetoric put forward by JMIU’s representatives and asked Respondent No.3 to confirm the assumptions later by providing guidelines, if any.