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Published : June 17, 2011 | Author : sanjana
Category : Constitutional Law | Total Views : 5525 | Rating :

  
sanjana
Sanjana Mittal I am a student of fourth year in Symbiosis Law School.
 

Meaning of Section 23 of the RTI Act- Remedies available to an aggrieved party against an order of the Central Information Commission

The introduction of the Right to information act in 2005, ushered an all together a new era of openness, transparency and accountability in administration. The act makes the public authorities owned partially or fully governed by the Government liable to disclose the information accessible by the public authority. The act though requires expeditious availability of the information and gives right to appeal in case of the delay (Section 19 of the act), it barres the jurisdiction of the civil court with respect to any suit, prosecution or other legal proceeding against any person for doing anything which is done in good faith or intended to be done under the Act. The act yet is a complete law which has provided for the establishment of Central Information Commission and the State Information Commission to hear second appeals and therefore even though jurisdiction of the civil courts is barred it does not violate provisions of fairness in the act.

The section 23 of the act gives finality to the orders of the special tribunal created under the act. As per the Section 23 of the act, “No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.” An act, may expressly barr the jurisdiction of the civil court if it gives sufficient remedies which otherwise would be resorted to by the civil court. The scheme of the appellate mechanism in the act determines this. The section 9 of the civil procedure code states that civil court would have jurisdiction in all the civil matter expect those where it has been expressly or impliedly barred by the statute. Section 9 of the CPC reads as “The courts shall subject to the provisions herein contained have jurisdiction to try all civil suits of a civil nature expecting the suits of which their cognizance is either expressly or impliedly barred.”

To determine the extent of jurisdiction, to be exercised by the tribunals or the extent to which it is barred the intention of the legislature needs too be looked into. As was stated in the matter of the intention of legislature is to get the disputes arising under a special act by the special tribunal established under the act. The same should therefore be liberally construed and extent of jurisdiction not be questioned on basis of facts which come before it or the correctness of findings or the enquiry the tribunal makes. The jurisdiction of a tribunal could thus be questioned only if the tribunal is not constituted properly or the basic preliminaries to the enquiry are not observed by the tribunal.

Though, by the term “ no court”, it has to be construed that the provision aims to restrict only the jurisdiction of civil court and the remedy against the decision of the commissioner still lies in the high court in form of appeal against the impugned order. To determine the extent of jurisdiction, to be exercised by the tribunals or the extent to which it is barred the intention of the legislature needs too be looked into. As was stated in the matter of Ujjam Bai (Smt.) v State of Uttar Pradesh the intention of legislature is to get the disputes arising under a special act by the special tribunal established under the act. The same should therefore be liberally construed and extent of jurisdiction not be questioned on basis of facts which come before it or the correctness of findings or the enquiry the tribunal makes. The jurisdiction of a tribunal could thus be questioned only if the tribunal is not constituted properly or the basic preliminaries to the enquiry are not observed by the tribunal.

The clause, however does not outlaw the jurisdiction of the High Court and supreme court by way of Articles 32(writ jurisdiction of Supreme Court), Article 226(Writ jurisdiction of High Court) and Article 136 (Provision for the special leave petition). Most importantly the high court derives it powers from Article 227 by which it has superintendence over all courts and tribunals throughout the territory. As was stated in L. Chandra kumar’s case the tribunals created under Article 323 A or 323 B shall be subject to the writ jurisdiction of High Court. If an order of the central information commission is considered as illegal or invalid as being contrary to the law, an appeal would lie against it in the high court.

The provision though, does put a bar on direct application to the courts in case of the failure of the information machinery. As was stated in the matter of Punjab National Bank v. O.C. Krishnan and Ors, where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction. Since the hierarchy is laid by the act under the section, whereby the person may make first appeal to the Central Public Information Commissioner and second appeal to the Central information Commissioner, the aggrieved has to follow the pattern and only then he can file a writ petition against the impugned order. That too is at the discretion of the court if it wants to entertain it or not.

The bar on the jurisdiction of the court gives a free hand to the administrative decisions under the act. This gives the high court to have the benefit of reasoned decision on merits, which can be used by it later. Also, in this way, it is ensured that frivolous claims are filtered out through the process of adjudication in the tribunals and then the remedy to approach higher judiciary is always available.
*********************
AIR 1962 SC 1621(1629-1630)

Authors contact info - articles The  author can be reached at: sanj@legalserviceindia.com




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