A second look at the CIC order regarding Attorney General
Issue: The Central Information Commission (CIC) has ruled that the Attorney General for India is a public authority as per the Right to Information Act, 2005. This decision has evoked criticism from the activists and it has been claimed that the CIC has missed many aspects in the order. This article examines the order of the CIC from the legal angle.
For the salient features of the order and a copy of the original order, please visit - http://www.rtifoundationofindia.com/ag-%E2%80%98public-authority%E2%80%99-right-information-act-2915
Is the Central Information Commission order judicially sustainable?
- The CIC has held that the office of Attorney General (AG) is sui generis. He is a standalone counsel of the Govt. of India who renders legal advice which is not binding in nature. It has been argued by activists that the position of AG is neither a sui generis nor is he merely a person.
- The office of AG of India is a public office established by the Constitution to which an eminent lawyer possessing the essential qualifications is appointed by the President of India.
- The Attorney General was represented by Shri Sidharth Luthra, Additional Solicitor General with Advocates Dev Dutt Kamat, Divya A. and Arjun Dewan i.e., they were being defended at government expense. It is surprising that AG was being defended by a public authority at public expenses for proving that it is not a public authority.
- A reading of the term ’Law Officer’ contained in Rule 2(d) of the Law Officers (Conditions of Services) Rules, 1987 indicates that the AG is a ‘Law Officer’.
- Rule 2(d) reads: “Law Officer” means and includes the Attorney‐General for India, the Solicitor‐General for India, Additional Solicitor‐General for India.
- Rule 3 of the Law Officers (Conditions of Services) Rules, 1987 clearly states that the AG is appointed to an office.
- A Constitution bench of the Apex Court observed that Attorney General holds the office during the pleasure of the President under Article 76 (4) of the Constitution. (B P Singhal v. Union of India and Anr. in WP (C) No. 296 of 2004).
- It has been pointed out that in many cases, the AG has the authority or power to alter the relations or rights of others.
- Section 15(1)(b) of the Contempt of Courts Act, 1971 read with the section 15 (3) grants the power to the AG to give consent or withhold the same for the initiation of criminal contempt proceedings in the Supreme Court of India against anyone.
- The discretionary power of AG to decide the request of a citizen making to move a criminal contempt petition against is subject to judicial review.
- In case of investigation of a case under the Prevention of Corruption Act, 1988 there can be cases where there is a difference of opinion between the investigating officers of the Central Bureau for Investigation (CBI) during any stage of the investigation. In such cases the final decision is not to be taken by the Director, C.B.I, or any other officer but by the Attorney General on reference being made to him of the difference of opinion between the concerned officers. (Union of India and Ors. V. Sushil Kumar Modi and Ors. [(1997) 4SCC 770] )
- As per Section 26 of the Atomic Energy Act, 1962, (read with Section 18) prosecution can be launched against a person for obtaining or disclosing restricted information about the plan, design or working of atomic power plants only with the consent of the AG.
- Dealing with the issue whether the Jaipur Stock Exchange and the National Stock Exchange were public authorities under the RTI Act, a four member bench of the CIC had held that an authority or an institution or a body if it is a “state” within the meaning of Article 12 of the Constitution of India, it cannot claim that it is outside the purview of the Right to Information Act, 2005. [Smt. Raj Kumari Agrawal and Ors. v. Jaipur Stock Exchange and Ors.] Is AG not a ‘state’?
- There are many public authorities under the RTI Act where the relation cannot be termed master-servant relationship - President / Governor / Supreme Court / High Court / Legislature etc. Are these not public authorities as defined under the RTI Act?
The issue whether the Attorney General for India is a public authority as per the Right to Information Act, 2005 is not likely to settle at the level of the High Court. The matter would definitely reach the Supreme Court to attain finality. As citizens, we are destined to wait for a couple of years, hopefully, not a few decades.