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9. Respondent no.2 has filed a counter affidavit refuting the averments made by the petitioner. In the affidavit, respondent no.2 relying on section 18(3) & (4) of the Right to Information Act, 2005 has contended that the Commission, which is the appellate authority under the RTI Act, has absolute power to call for any document or record from any public authority, disclosure of which documents, before the Commission cannot be denied on any ground in any other Act. Further the impugned order is only an interim order passed by the Commission by way of which the information in respect of which disclosure was been sought has only been summoned in a sealed envelope for perusal or inspection by the commission after which the factum of disclosure of the same to the public would be decided and that the petitioner by challenging this order is misinterpreting the intent of the provisions of the Act and is questioning the authority of the Commission established under the Act. It was also asserted by respondent no.2 that the Commission in exercise of its jurisdiction in an appeal can decide as to whether the exemption stipulated in Section 8(1)(a) of the RTI Act is applicable in a particular case, for which reason the impugned order was passed by the Commission, and thus by prohibiting the disclosure of information to the Commission, the petitioner is obstructing the Commission from fulfilling its statutory duties. Also it is urged that the Right to Information Act, 2005 incorporates all the restrictions on the basis of which the disclosure of information by a public authority could be prohibited and that while taking recourse to section 8 of the Right to Information Act for denying information one cannot go beyond the parameters set forth by the said section. The respondent while admitting that the Right to Information Act cannot override the constitutional provisions, has contended that Articles 74(2), 78 and 361 of the Constitution do not entitle public authorities to claim privilege from disclosure. Also it is submitted that the veil of confidentiality and secrecy in respect of cabinet papers has been lifted by the first proviso to section 8(1)(i) of the Right to Information Act, which is only a manifestation of the fundamental right of the people to know, which in the scheme of Constitution overrides Articles 74(2), 78 and 361 of the Constitution. Respondent no.2 contended that the information, disclosure of which has been sought, only constitutes the documents on the basis of which advice was formed/decision was made and the same is open to judicial scrutiny as under Article 74(2) the Courts are only precluded from looking into the „advice‟ which was tendered to the President. Thus in terms of Article 74(2) there is no bar on production of all the material on which the ministerial advice was based. The respondent also contended that in terms of Articles 78 and 361 of the constitution which provides for participatory governance, the Government cannot seek any privilege against its citizens and under the Right to Information Act what cannot be denied to the Parliament cannot be denied to a citizen. Relying on Section 22 of the Right to Information Act the respondent has contended that the Right to Information Act overrides not only the Official Secrets Act but also all other acts which ipso facto includes Indian Evidence Act, 1872, by virtue of which no public authority can claim to deny any information on the ground that it happens to be a „privileged‟ document under the Indian Evidence Act, 1872. The respondent has sought the disclosure of the information as same would be in larger public interest, as well as, it would ensure the effective functioning of a secular and democratic country and would also check non performance of public duty by people holding responsible positions in the future.

21. It will be appropriate to consider other precedents also relied on by the parties at this stage. In State of U.P. vs. Raj Narain, AIR 1975 SC 865 the document in respect of which exclusion from production was claimed was the Blue Book containing the rules and instructions for the protection of the Prime Minister, when he/she is on tour or travelling. The High Court rejected the claim of privilege under section 123 of the Evidence Act on the ground that no privilege was claimed in the first instance and that the blue book is not an unpublished document within the meaning of section 123 of Indian Evidence Act, as a portion of it had been published, which order had been challenged. The Supreme Court while remanding the matter back to the High Court held that if, on the basis of the averments in the affidavits, the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of the proceedings of the cabinet, which is per se entitled to protection, then in such case, no question of inspection of that document by the court would arise. If, however, the court is not satisfied that the Blue Book belongs to that class of privileged documents, on the basis of the averments in the affidavits and the evidence adduced, which are not sufficient to enable the Court to make up its mind that its disclosure will injure public interest, then it will be open to the court to inspect the said documents for deciding the question of whether it relates to affairs of the state and whether its disclosure will injure public interest.

25. In State of Punjab vs. Sodhi Sukhdev Singh, AIR 1961 SC 493, on the representation of the District and Sessions Judge who was removed from the services, an order was passed by the Council of Ministers for his re-employment to any suitable post. Thereafter, the respondent filed a suit for declaration and during the course of the proceedings he also filed an application under Order 14, Rule 4 as well as Order 11, Rule 14 of the Civil Procedure Code for the production of documents mentioned in the list annexed to the application. Notice for the production of the documents was issued to the appellant who claimed privilege under section 123 of the IEA in respect of certain documents. The Trial Court had upheld the claim of privilege. However, the High Court reversed the order of the Trial Court in respect of four documents. The issue before the Supreme Court was whether having regard to the true scope and effect of the provisions of Sections 123 and 162 of the Act, the High Court was in error in refusing to uphold the claim of privilege raised by the appellant in respect of the documents in question. The contention of the petitioner was that under Sections 123 and 162 when a privilege is claimed by the State in the matter of production of State documents, the total question with regard to the said claims falls within the discretion of the head of the department concerned, and he has to decide in his discretion whether the document belongs to the privileged class and whether or not its production would cause injury to public interest. The Supreme Court had ultimately held that the documents were „privilege documents‟ and that the disclosure of the same cannot be asked by the appellant through the Court till the department does not give permission for their production.

43. The Commission under the Right to Information Act, 2005 has no such constitutional power which is with the High Court and the Supreme Court under Article 226 & 32 of the Constitution of India, therefore, the interim order passed by the CIC for perusal of the record in respect of which there is bar under Article 74(2) of the Constitution of India is wholly illegal and unconstitutional. In Doypack Systems (supra) at page 328 the Supreme Court had held as under:-

"43. The next question for consideration is that by assuming that these documents are relevant, whether the Union of India is liable to disclose these documents. Privilege in respect of these documents has been sought for under Article 74(2) of the Constitution on behalf of the Government by learned Attorney General.