New Delhi, Dated July 17, 2007
Dear Mr Prasad:
This is in response to your e-mail dated June 15,2007 sent to our Chief, Shri Wajahat Habibullah, Chief Information Commissioner.
I was required to send a reply to you, but I am sorry for the delay in writing to you
because of my extremely busy work schedule.
Anyway, we must thank you for conveying your appreciation for the work being done by the Central Information Commission,
specially for rendering justice to the appellants by imposing penalty under Section 20 of the RTI Act in appropriate cases, and for
having consistently and unanimously taken the view that under Section 2(i)
(a) "record" includes "file notings", though there are some dissensions in some quarters which we cannot help in view of our
democratic system of Government where everyone is entitled to have his or her opinion.
So far as regards your other point regarding Section 23 of the RTI Act is concerned, we may inform you that notwithstanding
the provisions contained in that Section we are flooded with a number of
cases in Delhi High Court and other High Courts in India and we are somehow trying to manage this situation. Legally speaking, the
type of so-called ouster clause contained in Section 23, or even the provision like the one contained in Section 21 of the RTI Act,
does not give an absolute immunity to any administrative or quasi-judicial authority from being proceeded against in a court of
law. Confining myself, for the present, only to the provisions of Section 23 of the Act, I may remind you that as far back as the year
1997 the Supreme Court of India in the case of *L. Chandra* *Kumari* Vs. *Union of India* , AIR 1997 SC 1125, had held that even
though the decisions of the Tribunals established under Articles 323A and 323B of the Constitution were supposed to be final they were
still subject to the writ jurisdiction of the various High Courts in India under Article 226 of the Constitution. In any case, the
jurisdiction of the Supreme Court of India under Article 136 will remain
intact, notwithstanding any legislative provision like Section 23 of the
RTI Act ousting the jurisdiction of courts, unless, perhaps, the Constitution itself is suitably amended expressly debarring the
jurisdiction of the Supreme Court.
On the question whether one public authority can stand against another public authority or not, I may refer to at least one Article of
the Constitution i.e. Article 131 which envisages that one State may file
a case against another State, or even the Central Government itself may file a case against one of the States in India
before the Supreme Court of India
I hope I have answered all your queries.
With regards and appreciating your concern and appreciation for the work
being done by the Central Information Commission.
Professor K. K. Nigam, Legal Advisor,
Central Information Commission, New Delhi