Is the AG a ‘public authority’ as per the Right to Information Act?
19 Dec, 2012Background:
In three complaints which came up before the Central Information Commission (CIC), the issue to be decided was whether the Attorney General of India is a public authority as per the Right to Information Act, 2005.
Arguments against the notion that the Attorney General (AG) for India is a Public Authority under 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; “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; “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; “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; of the RTI Act:
- AG is a stand-alone counsel of the Government of India and occupies a ‘sui generis’ position under the constitution.
- 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 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 as they are a body.
- The term ‘Authority’ has not been defined under the RTI Act which essentially means the power to alter the relations or rights of others. None of the functions of the AG belong to the realm of authority. [Reliance on Sukhdev Singh v. Bhagat Ram 1975(1) SCC 421].
- The role of AG 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. He has advisory role in the constitutional scheme and does not exercise any authority or power to alter the relations or rights of others.
- 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.
- The AG has no administrative control over the Solicitor General or the Additional Solicitor Generals. 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.
- The AG does not report to any authority as is contemplated under section 25 of the RTI Act. The AG for India cannot be said to be under the jurisdiction of any Ministry as is provided under section 25 of the RTI Act.
- The AG himself will have to be a CPIO as well as Appellate Authority as there is no Secretariat available with the Attorney General for India.
- AG 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. The relationship between the AG and the Govt. of India is that of a lawyer and a client. [Reliance on B. P. Singhal vs. Union of India (2010) 6 SCC 331 and P. N. Duda v. P. Shiv Shankar (1988) 3 SCC 167].
- 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 exempt from disclosure not only under sections 126 to 129 of the Evidence Act but also u/s 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; of the RTI Act.
Arguments in favour of the view that the Attorney General (AG) for India is a Public Authority under 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; “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; “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; “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; of the RTI Act:
- AG is appointed by the President of India under Article 76 of the Constitution and holds a constitutional position.
- The AG is appointed by a Notification issued by the Central Government.
- The AG works under the administrative control of the Ministry of Law & Justice.
- The Ministry of Law & Justice can easily appoint its officer as holding charge of CPIO and FAA for the office of the AG.
- 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.
View of the Central Information Commission
- 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. [Som Prakash Rekhi vs Union of India (1981) 1 SCC 449]
- 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. Thus, AG 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’.
- 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”.
- The office of Attorney General is sui generis. He is a standalone counsel of the Govt. of India who renders legal advice which is not binding in nature.
- There is a lawyer-client relationship between the AG and the Govt. of India and not that of servant and master.
Laws / Cases relevant for the discussion
1. 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.”
2. 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; “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; “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; “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; 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; “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; “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; “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; “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.”
3. Law Officer (Conditions of Service) Rules, 1987
4. Sukhdev Singh v Bhagatram (1975) 1 SCC 421
5. Som Prakash Rekhi vs Union of India (1981) 1 SCC 449
6. B.P. Singhal v Union of India (2010) 6 SCC 331
7. P.N. Duda v. P. Shiv Shanker (1988) 3 SCC 167
Citation: [Shri Subhash Chander Agrawal & oths v. Attorney General for India in File No.CIC/SM/C/2011/001542, File No.CIC/SM/C/2012/000609, File No.CIC/SM/C/2011/001322]
For a critical look at the order, please visit - http://www.rtifoundationofindia.com/second-look-cic-order-regarding-atto...
RTI Citation : RTIFI/2012/CIC/893
Click here to view original RTI order of Court / Information Commission