Central Information Commission
Ajitabh Sinha vs Supreme Court Of India on 26 February, 2018
CENTRAL INFORMATION C OMMIS SION Bh*alr CEma PlEcc' Ncw DclhF I 10066 Room No 3OE, B'rWm& Augudt KEDh Bha*sn, File No.CIC/Snff C/201 1/001 542 File No.CIC/S1U/C/2012/000609 Fite No.CIC/SM/C/20r U00 1322 Appellant 1. Shri Subhash ChanderAgrawal
2. Shri Ajitabh Sinha
3. Stui Mani Bam Sharma Public AuthoritY Attorney General for India.
Date ofhearing 01.11.2012
Date of decision rc.D.?+tz.
F acts :-
Complaint No. 001 542 has been filed by Shri Subhash Chandra Agrawal;
Complaint No. 000609 by Stri Ajitabh Sinha and Cornplaint No' 001322 by Shri Mani Ram Shamra. As these ttuee Complaints raise a oommon question of law, they are being decided t}rough a consolidated order that follows' 2, These matters are heard today dated l'll'2012 by a full Bench of the commission consisting of stui satyanands Misbra, chief Information commissioner; Smt. Annapuma Dxit, Information commissioner and shri M.L. Sharma, Information Commissioner. Appellant Subhash Chandra Agrawal is present in person Shri Ajitabh Sinha is , Dheeraj. 16r, -Shri Mani' I ISiiu.,D ri.d c"**i"i I 13 1;11 ftttl rl"t.
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3. The Attorney General for India (AG hereinafter) is represented by Shri sidharth Luthra, Additional soricitor Generar with Advocates Dev Duff Kamat, Divya A. and Arjun Dewan.
4. It is noticed that in the RTI application dated 2.12.2011, complainant Subhash Chandra Agrawal had sought the following inforuration :_ "1' Is it true that union Minirtry for Minority Affairs sought opinion of Honourable Attorney General of India on rupect of providing copies of entire communications between prime Minister Dr. Manmohan Singh and the Ministry ever since the lJpA govemment came into .power in the year . 2009 (as also referred in enciosed news clipping) ?
If yes, please provide copies of complete communication/s etc. received from Union Ministry of Minority Affairs andlor others etc on seeking such opinion of Hono,rable Attomey Generar of India as referred in query (l) above.
J. copy'of the opinion given by Honourabre Attomey General stui GE Vahanvati on the matter as referred in query(l) above.
4. Is it true that rules prohibit law officers of Union govenunent providiirg opinions to any ministry/departrnent of Government of India or any other statutory organization or any other public_sector_ or a reference in this regard is '{ Department of Legal received through the Ministry of Law & Justice' Affairs.
General Stri GE Vahanvati
5. Was the opinion of Honourable Attorney sought directly from him on the matter as referred in query (1) above by Union Ministry of Minority Affairs?
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6. Ifnot, name of the charmel through which Union Miflistry Shd OE Minority Aftairs seek such opinion of Attorney General Vahanvati as referred in query (1) above enclosing also complete correspondence on the aspect with channels like Ministry of Law & Justice, Department of Legal Affairs etc' Any other related information.
8. File-notings on movemcrt of this RTI petition as well' "
General'
5. As he did not receive any response from the oflice of Attomey 'he has filed the preseut complaint.
the o{fice
6. Complainant Ajitabh Sinha vide letter dated nil had requested thq Supreme Court of Attorney General for India for interpretation of orders of ofIrrdiainCBSE-Vs.AdifyaBandhopadhyayandthelnstituteofChartered AccoLmtants of India -Vs- Shaunak H Satyqr-lhe PS to the Attomey General d, for India had responded to it vide retter dated 4.4.2012 stating therein as followsi "This is to inform you that learned Attomey General for Ini'ia is not an authority as per the Right to Information Act, 2005 as such there is no Public Information Officer in this Oflice.,,
7. shri Mani Ram sharm4 vide RTI application dated r6.9.20il" had requested the AG's offrce to compry.with section 4 0f the RTI Act for greater transpaf,ency in the system. xhe ps to learned AG vide retter dated 2o.g.2orr had, inter-alia" infonned comprainant shri sharma as folrows :-
"This is to inform you that reamed Attomey Generar for India is not an authority as per the Right to Information Act, 2005. As such, there is no Fublic Relation Officer in this office.,, 8' In view ofthe above, the aforesaid comptaints have been filed before the Commission.
9' It is the forcefur contention of the learned AsG that the AG is nof a 'public authority' urs 2 (h) of the RTI Act. He has opened his arguments by submitting that the AG is appointed by the president of India under Article 76 of the Constitution. It is his duty to t}te Government of India on such legal matters and ro perform rd*rffiefu. of legar character whieh are ri:ferred or assigned to him by the President from time to time' The AG holds office during the pleasure ofthe President.
10. It is the ASG's contention that the AG is a stand alone couusel of the Government of India and occupies a sui generis position under the constitution and does not perform any functions which alter the rights ofothers' It is also his submission that ihe AG does not have any secretariat like other constihittional functionaries and is a single entity. All that he has in the name of staff is one Principal Private Secretary, one Stenographer and one Jamadar' The Learned ASG has also emphasised the fact ttrat the Attomey General for India is a Person; he is not an authority or body or instihrtion of self govemment. He is distinguishable from the comptroller and Audito,r General of India appointe.d under Article 148 and the Chief Election Cou[nissioner and the Election Commissionors, appointed under Article 324. According to him, ttre distinguishing feature between ihe AG on t}re one hand and CAG and the Election Commissioners on the other hand is that while the former is a Pgrson the latter are a body.
11. The Learned ASG has also drawn the Commission's attention to Rule 5 of dhe Law Offrcer (Conditions of Service) Rules, 1987, which enumerates the duties of a Law officer viz. to give advi oflndia on such legal matters and to perform such character as may be d refefred or assigned to him by the Govemment of India from time to time etc. Rule 5 is extracted below i "5. Duties - It shall be the duty of a Law Oflicer _
(a) to give advice to the Govemment of India upon such regal matters, and to perform zuch other duties of a legal character, as may from time to time, be refened or assigned to him by the Govemment of India.
(b) to appear, whenever reguired in the Supreme Court or in any High court on beharf of the Govemment of India in cases (incruding suits, writ petitions, appeai and other proceedings) in rvhich the Govemment of India is coneemed as a party or is otherwise interested;
(c) to r€present the Govemment of India in any reference made by the President to the supreme court under Article 143 of the constitution;
and
(d) to discharge such other functions as me conferred on a Law officer by or under the constitution or any other Law for the time being in force.o'
12. It is the further submission of the Ieamed ASG ttrat the tenn ,?ublic Authority" has been defined in section 2(h) of the RTI Act but the term 'Authority" has not been defined either in the RTI Act or in the constitution of India in the context of Article 12 thereof. Nor has it been defined in the General Clauses Act, 1982. hirq fhe term 'Authority' essentially means the power to alter 6ia+ of others. It is his submission $*t["r;
\i.qi.gi"'-,' 3 thatnoneofthefunctionsoftheAGbelongtotherealmofauthority,Hehas reliedonsukhdevSingh_Vs-BhagatRaml975(l)ScC42linttriscontext.
13. The Leamed ASG further submits that the AG has advisory role in the the constitutional scheme and does not exercise irny authority or Power to alter to relations or rights.of others. His role is confured only to render his opinion the Govemment of India as and when called upon to do so or to perfotm such other functions as are assigfred to himj 'Besideg the AG has no administxative contol over any of his staff which is provided and paid for by the Ministry of Law. This staff is under the administative control of the Ministry of Law. 'l Further, AG has no administrative c.ontrol over the solicitor General or I the Additional Solicitor Generals. Even the allocation of work to various Law officers is done by the Ministry of Law directly or through the central Agency I Section and the AG has no say therein It is, thus, the leamed ASG's contention ttrat the AG is not a Public Authority under section 2(h) o{,the RTI Act'
14. The leamed ASG has also submitted a written representation which is taken on record, Paras 02 to 17 thereof are extraoted below :-
.?.It is respeotfully submitted that the Attomey General for India is not a 'public authority' under the Rfl Act. It is submittrid that an analysilof th1 position, the nature'of appointment ,qq the fimctions of Attorney Ge19ra1 for India would reveal that the for India cannot be said to be a public authority for the '-,:.1-l .l *t /. n,',t ) ':i.:',, vI l',1;.r
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o' B.f?f prg"."ding fl,ther, certain relevant provisions of the Constitution and the RTI Act may be noted.
3' The Attorney Generar is appoirted by the president oftndia under Article 76 of the Consritution of Indii which *"0, _' *O"i ", Article 76(r) The president sha, appoint a person who qualified is to be appointed a Judge of the supreme court to # atto*"y-ceneral for India.
@ It shall be the duty of the Attomey_General to give advice to the of India upon such legai matters, ua to perforrn ,u"i ^O.:l:y:1, _othetlaw forthe time beinri in forci.
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(3) In the performance of his auties ttre Attomey-General shall have right of audience in all courts in the territory oimaiu. (4) The Attomey-General shall hold oftice awing ttre pleasure of the Presidenq and shall receive such.remuneration ai the president may determine."
4. Section 2(h) of the RTI Ac! 2005, defines a .public authority,
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which reads as follows :-
,lublic authority,, means l'STtio.n 2(h) any authority or body or institution of self-government established o.
"on*titut"d_-
(a) by or under the Constitution;
(b) by any other law made tiy parliament;
(q) by any other lawmade by State Legislature;
(d) by notification issued or ordei made by the appropriate Govemmen! and includes any -
ql body owned, controlled or substantially financed;
(ii) non-Govemment organization suf,stantially financed {irectly or indirectly by funds provided by the appropriate Government."..
5. The question which Attomey General for India is an 'authorif ' or a . /Z or.-ian-{fiF\tution of self-Govemment' established or constituted f uadfl;itr{ C0nstitution. The tern .body' <1i: /'! j !6::-:.'i
-1.",/ \.liG', $r'i \-,:_-., _/,' or .institution of self-Govemment' cannot be made applicable to thea enor*y C*.*f for India as the Attomey General for India is neither .body'noraninstitutionofsellGovernment'.Theterm.bodyisdefined in P."Ramanatha Aiyar's law lexicon 2nd edition at page 227 as "a number of individuals spoken of collectively, usually associated for common purpose, joined in a certain cause or united by some tie"'
6. The term 'authority' has been interpreted by the Hon'ble Supreme Court in several decisions in the context of Articte 12 though it 1s nol definedintheConstitutionoflndiaortheGeneralClausesAct'1897'It ,authority' is the power to alter the 'relations' has been held ttrat the term ;gfr" of others. It is submitted that none of the functions of the "i Attoirey General for tndia belong to the realm of authority'
7. In Sukhdev Singh v Blagatram (1975) I SCC 421 it was observed by the Hon'ble Suprerne Court that :-
"Govemmental function must be authoritative. It must Fe rble tq , imnose decision bv or under law with authoritv. The element of ffiar*t"r. The rules and regulations are
-ttr*imti* U"."rtt tfri.. trt.. and regulations direct and control ,rot only the exercise of powers by the Corporations but also all per$ons who dea] wittr these corporations."
8. In Som Prakash Rekhi vs Union of India (f98f) I SCC 449, the Hon'ble Supreme Court obsetrred that authority in law belongs to the province of power and that authority means the ability to alter the rigtrts' iuties and liabilities of other persons. In this regard, the relevant portion of para 27 reads as follows i (in "Authority" iu law belongs to the province "lqo*"-t''*Authority Administrative Law) is a body having jurisdiction in certain matters of a public nature." Thercfore. the {'abilitv conferred uEon a ffis' must be prqsenf Fb extra !o m*ke a eerso" ., 'atthorit,"'' When the person is an 'agent or instrument .f tt" n ncti""s th Stat"' ttte power is public' So the search here must be to see "f whether the Act vests authority, as agent or instrument of the State, to relations of oneseif or others."
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9' It is submitted that the Attomey General of India is a standarone counsel of the Govemment and opin.r o. upftairs in matte.s which are referred to him on behalf of the d"r;r;";'1."-fh;
Attorney General of India is a sui generic position *d". til;;; pe$op any functions which alter the .igtr* cion"titurion and does not o-i'otfrerr. It is further submitted that thb AttoleV General Aro like other Constitutional -tunctionaries [", ,ro, t ur" any Secretariat adminishative convenience, th: Ministry ;;;'; single entity. For Principal Private Secretary, one Stenograplier ;i-Ll* ,.od"rs him one La Jn" f"maO"r.
10. The Learned Attomey General gives opinions on the files which are referred to him and such files *" Ir., ."to*J b*k *ftfrlrl being kept with &e Attomey General. Frrtb;;; th" ""pi.i Attomey General appears in matters in the supreme court which are marked Central Agency Section of Ministry of Law & fustice.
t rii* uy ti* ll. -
The Attomey General has no administrative conhol over any of the attach:d which is provided and paid for a*d under the adminiskative Ta-ff gonfol.o.f me Ministry of Law or over any of the other law omce.s tite the solicitor General or Additional soricitor Generals. The allocation of work is done by the Ministry of Law directly or through the, C";t ai Agency section, which is under the contror of an aaaitii'nar seoietari, Ministy of Law Matters/opinions are routed from each Minishy Ministry of Law and unless required by any statute or by the order ;;
of court' the Additional secretary sends a docket [atrthorir"tion l"tt"., to ur,y of the law officers, who independent of the Attomey General giur"th"; opinion or represents the Union of India in the Couris.
12. It is, thus, submitted tha! the Attomey General is not an authority for the purposes ofRTI Act and as such cannot fall under Section the RTI Acg 2005.
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13. It is submitted that the relationsrrip of the Attomey General to the Govemment is that of a lawyer and thJ client. This aspect too is well settled. tn B,P. Singhal v Union of India (2010) 6 SCC 331, _ the constitutional bench of the Hon'ble supreme court ireld that there- is a tlwVerllienl relationship berween the Union of India and the Attomey General for India.
14. Similarly, in p.N. Shaaker (f988) 3 SCC 167, it was observed that the India, though unlike England, is not a member of the of the court and in some o respects acts as the ftiend, philosopher and guide of the court (see para
31)
15. It is respectfully submiued that the above-said judgments clearly hold that the relationship between the Govemment and the Attomey General is one ofa lawyer-client relationship and as such the lawyer of the Government cannot be said to be a 'public authority'.
16. Apart from the legal position, if the contention of the appellant is accepted that the Attomey General is a public authority, it can have severe practical problems as the Attomey General himselfwill have to be a CPIO as well as Appellate Authority as there is no Secretariat available with the Attomey General for India.
17. Furthermore, the Attornei General does not rcport to any authority as is contemplated under section 25 of the RTI Act. The Attomey General for India cannot be'said to be under the jurisdiction of any Ministry as is provided under section 25 of the RTI Act It is, thus, respectfully submitted that the position of Attorney General for tndia is a tmique position under the Constitution of India and from the naflre of functions which he perfonns, it cannot be said that he perfomring the .
functions of a public authority."
15. Without prejudice to his above submissions, the Ld. ASG has also advanced an alternative argumenl before this commission. It is his contention that Attomey General is the senior most lawyer of the Govt. of India and the advice rendered by him is protected in tems of section 126 to lz9 of the Indian Evidence Act. He underlines the fact that the relationship between the AG and the Govt' of India is that of a lawyer and a client and that trri, aspe"t of tt "
relationship has been settled by the supreme court in B. p. singhal vs. union of India (2010) 6 SCC 331 and p. N 'r..r1Ji',r!^ P. Shiv Shankar (1988) 3 SCC 167.
It is his contention that even if the Attomey General for India j is a public authority, the advice rendered by him to the Govt. of India is exempted from disclosure not only under sections 126 to lZ9 ofthe Evidence Act but also u/s 8 (l) (ei of the RTI Act.
16. Complainant S. C. Agarwal has also file.d a witten representation dated l9,ll,2002 before the Commission which is taken on record. The first and foremost submissionr made by him is that the Attorney General for India is appointed by a Notification issued by the Central Government. He holds a constitutional position and is, therefore, a public authority n/s 2 (h) of the RTI Act,
17. His another submission is that the Attomey General works under the adminishative coutrol of the Ministry of Law & Justice. The relevant portion of his submission in this regard is extracted below:-
'Attorney General woiks under the adminishative conffol of the Ministry of Law & Justice. The said Ministry can easily appoint its officer as holding charge of CPIO and FAA for the oflice of the Attomey General. It may be mentioned that there are many public-authorities which because of not having available posts for appointment of CPIOs and Appellate Authorities, are having such posts of CPIOs aod Appe[ate Authorities in the Ministries which have administrative control on such public-authorities. Even public-authority like 'Delhi Milk Scheme' has Appellate Authority as Joint Secretary at Department of Animal Husbandry & Fisheries (Union -Ministry of Agxiculture). In ca$e of Attomey General, Appellate Authority can thus be an officer at Union Ministry of t 1g. His last submission is that the Advocate Generals in the States are are akin to appointed under Article 165 of the constitution and their functions that of AG. The offices of the Advocate Generals are functioning as 'public authority, in terms of sectiou 2 (h) of the RTI Act. As the relationship between is similar to that the Advocate Generals with Oreir respective State Govemments as between the Attomey Generai and the Gora' of India, by parrty of reasoning' the Attomey General should be held to be public authority u/s 2
(h) of the RTI ';l Act.
Decisiol i4! Reasong The rcal question is whether the Attomey"General for India is a public
19.
authority rr/s 2 (h) of the RTI Act. As submitted by the Ld' ASG' the expression 'public authority' has been defined r'r/s 2 (h) of the RTI Act but the word ,authority' has not been defured under the said Act. In fact, the urord in force' 'authority' has not been defined under any law for the time being Therefore, the word 'authority' requires to be construed as per the rulings of oonstitutional courts. It may be apt to mention that in som Prakash Rekhi vs. Union of India (1981) 1 SCC 449, the Supreme Court observed as follows:-
"27 . Control by Govemment of the corporation is writ large in the Ait and in the factum oi being a Govemment company. Moreover, here, Section 7 gives to the Government company mentioned in it a statutory reoogni_tion, a legislative sanction and a mere Govemment comPanY' If the entity is no more than a the Cornpany law or societY under the law relating to cooperative societies You camot f l'ii I '-:i: ./.
t,rn :{ii'., IJ call it an auttrority. A ration shop run by a cooperative store financed hv government is not an authority, being a mere merchant, *i ,il;;i-J*i:
;
power. 'Authority' in. law belong to the province (in Adminishative Law) is a body f,avine.,*i.Ai.ti", ,Aril;;;
of power:
public nature.' Therefore, the 'abilify co-nfened i,;;;#ffiiX upon a person by the law to alter, by his own will.directed to that end, Ae rightr, iltt;; lidittd;;
other legal telations, sithff 6f foimsslf or oi other persons, must be present ab extra to make a person an .authority,. When the pil;;;6;; instrument of the functions of the state; the power is pubric.
so th;-r;;;;
here must be to see whether the Act vests autho,ty, as agent or instrument of the State, to affect the legal relations ofoneselfoiothers.,
20. As held by the Suprerne Court in the case cited above, .authority, in law belongs to the province of power. A pe.rson can be said to be an auihority when he has the power to alter 'relations; or rights of others. As per Article 76 (2), the duty of the Attomey General is to render advice to the Govt. of India on legal matters, Viewed thus, he cannot be said to be an .authority'as he does not perform any functions which alter the 'relations' or rights of others.
The advice rendered by him may be accepted by the Govt. of India or it may not be accepted. His advice per se does not have a binding effect. The Attomey General, thus, cannot be said to be an ,authority,,
21. As noticed above, section 2 (h) of the RTI Act defines ,public authority'.
Public authority, inter alia, means any authority or body or institution of self govemment established or constituted by or trnder the constitution, As noticed abovq the Attomey General per . Nor is he a body or institution of self govemment. fact that the Central t Govemment has issued a Notification appointing the Attorney General does not render him to be a public authority u/s 2 (h).
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22. The ASG has contended that post of the Attomey General is sui generis.
shri P. Ramanatha Ayer's Law Lexicon defures the expression sui generis as "of his own kind; peculiar to himself'. Simitarly, Webster,s dictionary defines sui generis as "consisting a class alone; unique; peculiar,,, We are inclined to accept the submission of the ASG that AG's office is sui generis. He stands alone and, therefore, even though appointed under Article 76 of the Constitution, he is not a Public Authority u/s 2 (h) of the RTI AcL
23. Now, we come to another submission of complainant Aggarwal wherein he contends that Advocate General ofseveral states are ftrnctioning as public authority r:/s 2 (h) of the RTI Act and as the duties and functions of the Attorney General are akin to those being performed by the Advocate Generals, there is no reason why the Attorney General should not be declared a public authority u/s 2 (h). suffrce to say that we have held that the office of Attomey General is sui generis. He is not an authority. Nor he is a .public authority'. In this view of the matter, the fact that Advocate Generals of oertain States are performiug the duties of .public :n if true, cannot be said to be of any legal conseguence.
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24. Complainant Aggarwal has also contended that the A,G. functions under the Ministry of Law,and Justice and iq therefore, a public authority. We cannot accept this argument as there is a lawyer-client relationship between the AG and the Govt. of India and not that of servant and master and, thereforq this argument should be rejected.
25. In view of the above discussion, we hold that the office of Attorney General is sui generis. He is a standdlone counsel of the Govt. of India. He renders legal advice to the Govt. of India which is not binding in nature' He is not a public authority u/s 2 (h) of the RTI Act. Therefore, the complaints referred to hereinabove have no merit and are dismissed.
R;t\'"q'-
/o' (Satyananda Mishra) Chief Information Commissioner ;x".ffi/ (M. L. Sharme) r lnformation Commiseioner I