SUBHASH CHANDRA AGRAWAL &ORS V/S OFFICE OF ATTORNEY GENERAL OF INDIA
DECIDED ON 10.3.2015
DECIDED ON 10.3.2015
In a move that might have far reaching
consequences towards creating transparency and accountability in the legal
system, the Delhi High Court has ruled that the office of the Attorney General
will be covered under the ambit of the Right to Information Act, 2005 (RTI Act).
The decision came in view of the writ
petition filed by an RTI Activist, Mr. Subhash Chandra Agrawal, which was
against the order passed by the full bench of Central Information Commission (CIC)
wherein it had held that the office of Attorney General was not a public
authority under the RTI Act.
consequences towards creating transparency and accountability in the legal
system, the Delhi High Court has ruled that the office of the Attorney General
will be covered under the ambit of the Right to Information Act, 2005 (RTI Act).
The decision came in view of the writ
petition filed by an RTI Activist, Mr. Subhash Chandra Agrawal, which was
against the order passed by the full bench of Central Information Commission (CIC)
wherein it had held that the office of Attorney General was not a public
authority under the RTI Act.
Brief
Facts
Facts
1. Mr. R.K
Jain had filed an application on January 7, 2013 with the office of the
Attorney General of India (herein after the “AGI” being the Respondent) seeking
information under the RTI Act. The said application was returned stating that
as per the decision of the CIC, the office of the AGI is not a “Public
Authority”.
Jain had filed an application on January 7, 2013 with the office of the
Attorney General of India (herein after the “AGI” being the Respondent) seeking
information under the RTI Act. The said application was returned stating that
as per the decision of the CIC, the office of the AGI is not a “Public
Authority”.
2. Mr. Subhash Chandra Agrawal (herein
after the “Petitioner”) had also filed an application on
November 15, .2011 addressed to the CPIO office of the AGI seeking certain
information under the RTI Act. The
office declined to accept the application and informed the Petitioner, “There
is no CPIO in AGI’s Office”.
after the “Petitioner”) had also filed an application on
November 15, .2011 addressed to the CPIO office of the AGI seeking certain
information under the RTI Act. The
office declined to accept the application and informed the Petitioner, “There
is no CPIO in AGI’s Office”.
3. The Petitioner
then filed a complaint under Section 18 of the RTI Act and approached the CIC.
The CIC vide order dated December 10, 2002 (the “Impugned Order”) rejected
the complaint filed by the Petitioner and decided against him. The
CIC was of the view that the AGI was only a person and could not be considered
as an “authority” and hence fell outside the scope of Section 2(h) of the RTI
Act.
then filed a complaint under Section 18 of the RTI Act and approached the CIC.
The CIC vide order dated December 10, 2002 (the “Impugned Order”) rejected
the complaint filed by the Petitioner and decided against him. The
CIC was of the view that the AGI was only a person and could not be considered
as an “authority” and hence fell outside the scope of Section 2(h) of the RTI
Act.
4. It was
against the abovementioned order passed by the CIC that the Petitioner approached
this Hon’ble Court.
against the abovementioned order passed by the CIC that the Petitioner approached
this Hon’ble Court.
5. It was
contended by the Petitioner that the “office
of the AGI is established by virtue of Article 76 of the Constitution of India
and, therefore, AGI would be answerable to the people of India.” The
petitioners also submitted, “The right to
information is a fundamental right under Article 19(1) (a) of the Constitution
of India and, therefore, the RTI Act must be interpreted in furtherance of the
said fundamental right.”
contended by the Petitioner that the “office
of the AGI is established by virtue of Article 76 of the Constitution of India
and, therefore, AGI would be answerable to the people of India.” The
petitioners also submitted, “The right to
information is a fundamental right under Article 19(1) (a) of the Constitution
of India and, therefore, the RTI Act must be interpreted in furtherance of the
said fundamental right.”
6. On the
contrary, it was contended by the Respondent that , “the AGI does not have the necessary infrastructure to support the
applicability of the RTI Act in as much as, the AGI is a single person office
and, therefore, would have to act as a CPIO as well as the Appellate Authority.
Since the same is not feasible, the AGI cannot be held as Public Authority.”
contrary, it was contended by the Respondent that , “the AGI does not have the necessary infrastructure to support the
applicability of the RTI Act in as much as, the AGI is a single person office
and, therefore, would have to act as a CPIO as well as the Appellate Authority.
Since the same is not feasible, the AGI cannot be held as Public Authority.”
Issue for
Consideration
Consideration
The main issue for consideration was:-
1. Whether the office of Attorney
General of India is a “Public Authority” within the meaning of section 2(h) of
the Right to Information Act, 2005?
General of India is a “Public Authority” within the meaning of section 2(h) of
the Right to Information Act, 2005?
Decision of the Court
1. The High Court analyzed Article 76 of the
Constitution that mandates for office of the Attorney General and also delved
upon the conditions of services of the AGI under Article 309 of the
Constitution that are also applicable to Law Officers ( the term law officer
includes the AGI). Article 76 of the
Constitution of India provides for the appointment of the Attorney General for
India and reads as under:-
Constitution that mandates for office of the Attorney General and also delved
upon the conditions of services of the AGI under Article 309 of the
Constitution that are also applicable to Law Officers ( the term law officer
includes the AGI). Article 76 of the
Constitution of India provides for the appointment of the Attorney General for
India and reads as under:-
“76.
Attorney-General for India.-(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.
Attorney-General for India.-(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.
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.
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.”
office during the pleasure of the President, and shall receive such
remuneration as the President may determine.”
2. The court rejected the contentions
raised by the Respondent and held “The expression “authority” would also include all
persons or bodies that have been conferred a power to perform the functions
entrusted to them. Merely because the bulk of the duties of the AGI are
advisory, the same would not render the office of the AGI any less
authoritative than other constitutional functionaries. There are various
bodies, which are entrusted with ‘staff functions’ (i.e. which are advisory in
nature) as distinct from ‘line functions’. The expression “authority” as used
in Section 2(h) cannot be read as a term to exclude bodies or entities which
are, essentially, performing advisory functions.”
raised by the Respondent and held “The expression “authority” would also include all
persons or bodies that have been conferred a power to perform the functions
entrusted to them. Merely because the bulk of the duties of the AGI are
advisory, the same would not render the office of the AGI any less
authoritative than other constitutional functionaries. There are various
bodies, which are entrusted with ‘staff functions’ (i.e. which are advisory in
nature) as distinct from ‘line functions’. The expression “authority” as used
in Section 2(h) cannot be read as a term to exclude bodies or entities which
are, essentially, performing advisory functions.”
3. The court also stated that, “The expression ‘authority’ as used in Section 2(h)
of the Act would encompass any office that is conferred with any statutory or
constitutional power. The office of the AGI is an office established under the
Constitution of India; the incumbent appointed to that office discharges
functions as provided under the Constitution. Article 76(2) of the Constitution
expressly provides that the AGI would perform the duties of a legal character
and also discharge the functions conferred on him under the Constitution or any
other law in force. Indisputably, the appointee to that office is, by virtue
the constitution, vested with the authority to discharge those functions.”
of the Act would encompass any office that is conferred with any statutory or
constitutional power. The office of the AGI is an office established under the
Constitution of India; the incumbent appointed to that office discharges
functions as provided under the Constitution. Article 76(2) of the Constitution
expressly provides that the AGI would perform the duties of a legal character
and also discharge the functions conferred on him under the Constitution or any
other law in force. Indisputably, the appointee to that office is, by virtue
the constitution, vested with the authority to discharge those functions.”
4. The court further
negated the reference to the meaning of the term “authority” under Article 12
of the Constitution of India and negated the reliance placed by the Respondent
on certain cases by observing, “The
decisions of the court rendered in the cases cited are under Article 12 of the
Constitution of India and it may not be apposite to apply them for interpreting
Section 2(h) of the RTI Act.”
negated the reference to the meaning of the term “authority” under Article 12
of the Constitution of India and negated the reliance placed by the Respondent
on certain cases by observing, “The
decisions of the court rendered in the cases cited are under Article 12 of the
Constitution of India and it may not be apposite to apply them for interpreting
Section 2(h) of the RTI Act.”
5.
However, the court didn’t focus on the issue of the disclosure of the
information if the same falls under the ambit of the exceptions listed in
Section 8 of the RTI Act.
