Complainant Aggarwal has also contended that the A.G. functions under
the Ministry of Law and Justice and is, 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, therefore, 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 standalone 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.
Central Information Commission
Mr.Subhash Chandra Agrawal vs Supreme Court Of India on 10 December, 2012
Complaint No. 001542 has been filed by Shri Subhash Chandra Agrawal;
Complaint No. 000609 by Shri Ajitabh Sinha and Complaint No. 001322 by
Shri Mani Ram Sharma. As these three Complaints raise a common question of
law, they are being decided through a consolidated order that follows.
2. These matters are heard today dated 1.11.2012 by a Full Bench of the
Commission consisting of Shri Satyananda Mishra, Chief Information
Commissioner; Smt. Annapurna Dixit, Information Commissioner and Shri
M.L. Sharma, Information Commissioner. Appellant Subhash Chandra
Agrawal is present in person. Shri Ajitabh Sinha is represented by Shri
Dheeraj. However, Shri Mani Ram Sharma is not present before the
Commission.
3. The Attorney General for India (AG hereinafter) is represented by Shri
Sidharth Luthra, Additional Solicitor General with Advocates Dev Dutt 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 information :-
"1.Is it true that Union Ministry for Minority Affairs sought opinion of Honourable Attorney General of India on aspect of providing copies of entire communications between Prime Minister Dr. Manmohan Singh and the Ministry ever since the UPA government came into power in the year 2009 (as also referred in enclosed news clipping) ?
2. If yes, please provide copies of complete communication/s etc. received from Union Ministry of Minority Affairs and/or others etc on seeking such opinion of Honourable Attorney General of India as referred in query (1) above.
3. Copy of the opinion given by Honourable Attorney General Shri GE Vahanvati on the matter as referred in query(1) above.
4. Is it true that rules prohibit law officers of Union government providing opinions to any ministry/department of Government of India or any other statutory organization or any other public-sector- undertaking unless the proposal or a reference in this regard is received through the Ministry of Law & Justice, Department of Legal Affairs.
5. Was the opinion of Honourable Attorney General Shri GE Vahanvati on the matter as referred in query (1) above sought directly from him by Union Ministry of Minority Affairs?
6. If not, name of the channel through which Union Ministry of Minority Affairs seek such opinion of Attorney General Shri GE 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.
7. Any other related information.
8. File-notings on movement of this RTI petition as well. "
5. As he did not receive any response from the office of Attorney General,
he has filed the present complaint.
6. Complainant Ajitabh Sinha vide letter dated nil had requested the office
of Attorney General for India for interpretation of orders of the Supreme Court
of India in CBSE -Vs- Aditya Bandhopadhyay and the Institute of Chartered
Accountants of India -Vs- Shaunak H Satya. The PS to the Attorney General for India had responded to it vide letter dated 4.4.2012 stating therein as
follows:-
"This is to inform you that learned Attorney General for India is not an authority as per the Right to Information Act, 2005 as such there is no Public Information Officer in this Office."
7. Shri Mani Ram Sharma, vide RTI application dated 16.9.2011, had
requested the AG's office to comply with section 4 of the RTI Act for greater
transparency in the system. The PS to learned AG vide letter dated 20.9.2011
had, inter-alia, informed complainant Shri Sharma as follows :-
"This is to inform you that learned Attorney General for India is not an authority as per the Right to Information Act, 2005. As such, there is no Public Relation Officer in this office."
8. In view of the above, the aforesaid complaints have been filed before the
Commission.
9. It is the forceful contention of the learned ASG that the AG is not a
'public authority' u/s 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 advise the Government of India on such
legal matters and to perform such other duties of legal character which are referred or assigned to him by the President from time to time. The AG holds
office during the pleasure of the President.
10. It is the ASG's contention that the AG is a stand alone counsel of the
Government of India and occupies a sui generis position under the
constitution and does not perform any functions which alter the rights of others.
It is also his submission that the AG does not have any Secretariat like other
constitutional 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 that the Attorney General for
India is a Person; he is not an authority or body or institution of self
government. He is distinguishable from the Comptroller and Auditor General of
India appointed under Article 148 and the Chief Election Commissioner and the
Election Commissioners, appointed under Article 324. According to him, the
distinguishing feature between the AG on the one hand and CAG and the
Election Commissioners on the other hand is that while the former is a Person
the latter are a body.
11. The Learned ASG has also drawn the Commission's attention to Rule 5
of the Law Officer (Conditions of Service) Rules, 1987, which enumerates the
duties of a Law officer viz. to give advise to the Government of India on such
legal matters and to perform such other duties of a legal character as may be referred or assigned to him by the Government of India from time to time etc.
Rule 5 is extracted below :-
"5. Duties - It shall be the duty of a Law Officer -
(a) to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time, be referred or assigned to him by the Government of India.
(b) to appear, whenever required, in the Supreme Court or in any High Court on behalf of the Government of India in cases (including suits, writ petitions, appeal and other proceedings) in which the Government of India is concerned as a party or is otherwise interested;
(c) to represent the Government 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 are conferred on a Law Officer by or under the Constitution or any other Law for the time being in force."
12. It is the further submission of the learned ASG that the term "Public
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, 1987. According to him, the term 'Authority' essentially
means the power to alter the relations or rights of others. It is his submission that none of the functions of the AG belong to the realm of authority. He has
relied on Sukhdev Singh -Vs- Bhagat Ram 1975(1) SCC 421 in this context.
13. The Learned ASG further submits that the AG has advisory role in the
constitutional scheme and does not exercise any authority or power to alter the
relations or rights of others. His role is confined only to render his opinion to
the Government of India as and when called upon to do so or to perform such
other functions as are assigned to him. Besides, the AG has no administrative
control over any of his staff which is provided and paid for by the Ministry of
Law. This staff is under the administrative control of the Ministry of Law.
Further, AG has no administrative control over the Solicitor General or 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
Section and the AG has no say therein. It is, thus, the learned ASG's contention
that the AG is not a Public Authority under section 2(h) of the RTI Act.
14. The learned ASG has also submitted a written representation which is
taken on record. Paras 02 to 17 thereof are extracted below :-
"2.It is respectfully submitted that the Attorney General for India is not a 'public authority' under the RTI Act. It is submitted that an analysis of the position, the nature of appointment and the functions of Attorney General for India would reveal that the Attorney General for India cannot be said to be a public authority for the purposes of RTI Act.
Before proceeding further, certain relevant provisions of the Constitution and the RTI Act may be noted.
3. The Attorney General is appointed by the President of India under Article 76 of the Constitution of India which reads as under:-
Article 76(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.
(2) It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force. (3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the territory of India. (4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine."
4. Section 2(h) of the RTI Act, 2005, defines a 'public authority' which reads as follows :-
"Section 2(h) "public authority" means any authority or body or institution of self-government established or constituted -
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government,
and includes any -
(i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government."
5. The question which arises is whether the Attorney General for India is an 'authority' or a 'body' or an institution of self-Government' established or constituted by or under the Constitution. The term 'body' or 'institution of self-Government' cannot be made applicable to the Attorney General for India as the Attorney General for India is neither a 'body' nor an institution of self-Government'. The term 'body is defined 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 Article 12 though it is not defined in the Constitution of India or the General Clauses Act, 1897. It has been held that the term 'authority' is the power to alter the 'relations' or rights of others. It is submitted that none of the functions of the Attorney General for India belong to the realm of authority.
7. In Sukhdev Singh v Bhagatram (1975) 1 SCC 421 it was observed by the Hon'ble Supreme Court that :-
"Governmental function must be authoritative. It must be able to impose decision by or under law with authority. The element of authority is of a binding character. The rules and regulations are authoritative because these rules and regulations direct and control not only the exercise of powers by the Corporations but also all persons who deal with these corporations."
8. In Som Prakash Rekhi vs Union of India (1981) 1 SCC 449, the Hon'ble Supreme Court observed that authority in law belongs to the province of power and that authority means the ability to alter the rights, duties and liabilities of other persons. In this regard, the relevant portion of para 27 reads as follows :-
"Authority" in law belongs to the province of power" "Authority (in Administrative Law) is a body having jurisdiction in certain matters of a public nature." Therefore, the "ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons" must be present ab extra to make a person an 'authority'. When the person is an 'agent or instrument of the functions of the State' the power is public. So the search here must be to see whether the Act vests authority, as agent or instrument of the State, to affect the legal relations of oneself or others."
9. It is submitted that the Attorney General of India is a standalone counsel of the Government and opines or appears in matters which are referred to him on behalf of the Government. The Attorney General of India is a sui generic position under the Indian Constitution and does not perform any functions which alter the rights of others. It is further submitted that the Attorney General also does not have any Secretariat like other Constitutional functionaries and is a single entity. For administrative convenience, the Ministry of Law renders him one Principal Private Secretary, one Stenographer and one Jamadar.
10. The Learned Attorney General gives opinions on the files which are referred to him and such files are then returned back without copies being kept with the Attorney General. Further, the Attorney General appears in matters in the Supreme Court which are marked to him by the Central Agency Section of Ministry of Law & Justice.
11. The Attorney General has no administrative control over any of the attached staff which is provided and paid for and under the administrative control of the Ministry of Law or over any of the other law officers like the Solicitor General or Additional Solicitor Generals. The allocation of work is done by the Ministry of Law directly or through the Central Agency Section, which is under the control of an Additional Secretary, Ministry of Law. Matters/opinions are routed from each Ministry to Ministry of Law and unless required by any statute or by the order of court, the Additional Secretary sends a docket [authorization letter, to any of the law officers, who independent of the Attorney General gives them opinion or represents the Union of India in the Courts.
12. It is, thus, submitted that the Attorney General is not an authority for the purposes of RTI Act and as such cannot fall under Section 2(h) of the RTI Act, 2005.
13. It is submitted that the relationship of the Attorney General to the Government is that of a lawyer and the client. This aspect too is well settled. In B.P. Singhal v Union of India (2010) 6 SCC 331, the constitutional bench of the Hon'ble Supreme Court held that there is a lawyer-client relationship between the Union of India and the Attorney General for India.
14. Similarly, in P.N. Duda v. P. Shiv Shanker (1988) 3 SCC 167, it was observed that the Attorney General for India, though unlike England, is not a member of the Cabinet yet is a friend of the court and in some respects acts as the friend, philosopher and guide of the court (see para 31)
15. It is respectfully submitted that the above-said judgments clearly hold that the relationship between the Government and the Attorney General is one of a 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 Attorney General is a public authority, it can have severe practical problems as the Attorney General himself will have to be a CPIO as well as Appellate Authority as there is no Secretariat available with the Attorney General for India.
17. Furthermore, the Attorney General does not report to any authority as is contemplated under section 25 of the RTI Act. The Attorney 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 India is a unique position under the Constitution of India and from the nature of functions which he performs, it cannot be said that he performing the functions of a public authority."
15. Without prejudice to his above submissions, the Ld. ASG has also
advanced an alternative argument before this Commission. It is his contention
that Attorney General is the senior most lawyer of the Govt. of India and the
advice rendered by him is protected in terms of section 126 to 129 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 this aspect of the
relationship has been settled by the Supreme Court in B. P. Singhal vs. Union of
India (2010) 6 SCC 331 and P. N. Duda vs. P. Shiv Shankar (1988) 3 SCC 167.
It is his contention that even if it is assumed that the Attorney General for India
is a public authority, the advice rendered by him to the Govt. of India is exempted from disclosure not only under sections 126 to 129 of the Evidence
Act but also u/s 8 (1) (e) of the RTI Act.
16. Complainant S. C. Agarwal has also filed a written representation dated
19.11.2002 before the Commission which is taken on record. The first and
foremost submission 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 u/s 2 (h) of the RTI
Act.
17. His another submission is that the Attorney General works under the
administrative control of the Ministry of Law & Justice. The relevant portion
of his submission in this regard is extracted below:-
"Attorney General works under the administrative control of the Ministry of Law & Justice. The said Ministry can easily appoint its officer as holding charge of CPIO and FAA for the office of the Attorney 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 and Appellate 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 Agriculture). In case of Attorney General, Appellate Authority can thus be an officer at Union Ministry of Law & Justice."
18. His last submission is that the Advocate Generals in the States are
appointed under Article 165 of the Constitution and their functions are akin to that of AG. The offices of the Advocate Generals are functioning as 'public
authority' in terms of section 2 (h) of the RTI Act. As the relationship between
the Advocate Generals with their respective State Governments is similar to that
as between the Attorney General and the Govt. of India, by parity of reasoning,
the Attorney General should be held to be public authority u/s 2 (h) of the RTI
Act.
Decision and Reasons
19. The real question is whether the Attorney General for India is a public
authority u/s 2 (h) of the RTI Act. As submitted by the Ld. ASG, the
expression 'public authority' has been defined u/s 2 (h) of the RTI Act but the
word 'authority' has not been defined under the said Act. In fact, the word
'authority' has not been defined under any law for the time being in force.
Therefore, the word 'authority' requires to be construed as per the rulings of
constitutional 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 Government of the corporation is writ large in the Act and in the factum of being a Government company. Moreover, here, Section 7 gives to the Government company mentioned in it a statutory recognition, a legislative sanction and status above a mere Government company. If the entity is no more than a company under the Company law or society under the law relating to registered societies or cooperative societies you cannot call it an authority. A ration shop run by a cooperative store financed by government is not an authority, being a mere merchant, not a sharer of State power. 'Authority' in law belong to the province of power: 'Authority (in Administrative Law) is a body having jurisdiction in certain matters of a public nature.' Therefore, the 'ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons' must be present ab extra to make a person an 'authority'. When the person is an 'agent or instrument of the functions of the State' the power is public. So the search here must be to see whether the Act vests authority, as agent or instrument of the State, to affect the legal relations of oneself or others."
20. As held by the Supreme Court in the case cited above, 'authority' in law
belongs to the province of power. A person can be said to be an authority when
he has the power to alter 'relations' or rights of others. As per Article 76 (2),
the duty of the Attorney 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 Attorney
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
government established or constituted by or under the Constitution. As noticed
above, the Attorney General per se is not an authority. Nor is he a body or
institution of self government. Therefore, the mere fact that the Central
Government has issued a Notification appointing the Attorney General does not
render him to be a public authority u/s 2 (h).
22. The ASG has contended that post of the Attorney General is sui generis.
Shri P. Ramanatha Ayer's Law Lexicon defines the expression sui generis as
"of his own kind; peculiar to himself". Similarly, 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 Act.
23. Now, we come to another submission of complainant Aggarwal wherein
he contends that Advocate General of several States are functioning as public
authority u/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). Suffice to say that we have held that the office of Attorney
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 certain States are
performing the duties of 'public authority', even if true, cannot be said to be of
any legal consequence.
24. Complainant Aggarwal has also contended that the A.G. functions under
the Ministry of Law and Justice and is, 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, therefore, 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 standalone 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.
Sd/-
(Satyananda Mishra)
Chief Information Commissioner
Sd/- Sd/- (Annapurna Dixit) (M. L. Sharma) Information Commissioner Information Commissioner
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