A full bench of the Central Information Commission ruled that the Attorney General of India is neither a public authority nor a public servant, sparking off a debate
The Attorney General of India (AGI) is the chief legal advisor of India and is appointed by the President of India under Article 76 (1) of the Constitution. He functions under the ministry of Law and Justice. Recently, three citizens invoked the Right to Information (RTI) Act, 2005 at the AGI’s office but were replied that it is not a Public Authority and hence the desired information cannot be supplied to them. When their appeals went to the Central Information Commission (CIC), the full bench ruled that AGI is neither public authority nor public servant. This has raised eyebrows amongst activists and academic scholars.
First, let’s have a look at the information sought from AGI’s office. RTI activist SC Agrawal invoked RTI to procure 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?
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 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.
Another citizen, Ajitabh Sinha asked for “interpretation of orders of the Supreme Court of India in CBSE v/s Aditya Bandhopadhyay” and the Institute of Chartered Accountants of India v/s Shaunak H Satya”.
Third citizen, Mani Ram Sharma requested the AGI’s office to comply with Section 4 of the RTI Act for greater transparency in the system.
For all the three RTI applications, the Private Secretary (PS) to the AGI replied 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.”
All three of them, then filed second appeals with the Central Information Commission. The full bench of the CIC comprising Chief Information Commissioner Satyanand Mishra, Information Commissioner Anupama Dixit and Information Commissioner MC Sharma decided on 10th December that AGI cannot be a public servant as it has a ‘lawyer-client relationship’ ‘with the Government and not’ ‘that of servant and master’.
The CIC also decided that, “…we hold that the office of Attorney General is sui generis. He is a standalone counsel of the Government of India. He renders legal advice to the Government 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.’’
Noted RTI activist Vijay Kumbhar is shocked by the CIC decision. His contention is that, “AGI’s post is constitutional as President appoints him; government issues notification of his appointment; he stands 11th in Indian order of precedence; his service conditions are decided as per rules made under Article 309 of Constitution of India read with article 76 (1); he gets vehicle with beacon lights; he gets government accommodation in Delhi; he cannot advice any party against the Government of India or a Public Sector Undertaking, or in cases in which he is likely to be called upon to advice, or appear for, the Government of India or a Public Sector Undertaking; he cannot defend an accused person in a criminal prosecution, without the permission of the Government of India; he cannot accept appointment to any office in any company or corporation without the permission of the Government of India; he has to take government’s permission before leaving the head quarters; AGI does public duty (as per prevention of corruption act "public duty" means a duty in the discharge of which the State, the public or the community at large has an interest and; he receives remuneration as well as fees from the government ,and hence as per definition in Prevention of Corruption Act he is a public servant ( “public servant" means- (i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty”)
Argues Kumbhar, “Now can we say AGI's relation with government is just a lawyer - client relationship? AG may not be public authority but definitely he is public servant and his relation with government is that of servant and master.”
Venkatesh Nayak, Programme Coordinator, Commonwealth Human Rights Initiative (CHRI) who has analysed the issue states that, “A deeper reading of the very rules and authorities cited by the Additional Solicitor General (ASG) clearly indicates that the AGI’s position is neither a sui generis position nor is he merely a person. The AGI’s office is a public office established by the Constitution to which an eminent lawyer possessing the essential qualifications is appointed by the President of India. Nothing in the CIC’s decision indicates that these matters have been considered and weighed before arriving at its finding that the AGI’s position is indeed sui generis. Therefore with the utmost respect to the wisdom of the CIC it is submitted that the aforementioned findings may be treated as per incuriam.”
Regarding the CIC decision that AG is not a public authority, Nayak analyses in his report: “The ASG’s contention that the term ‘authority’ in law belongs to the ‘province of power’ cannot be disputed. However neither has he placed before the CIC a complete picture of the roles and functions performed by the AGI, nor have the CIC examined, in full, the responsibilities and powers wielded by the AGI under other enactments. In fact, the entire argument of the ASG is based on a limited number of constitutional provisions without reference to any other statute which vests duties and powers in the AGI. It is submitted that the CIC did not have before it all and complete facts on the basis of which to arrive at its conclusion…Such a conclusion can be arrived at only after a critical examination of all the powers and duties and responsibilities vested in the AGI not only by the Constitution but also by other enactments and through judicial interpretation.”
Giving an example, Nayak states,”The AGI has the discretionary power to grant or withhold consent for the prosecution of a person under the Atomic Energy Act. If consent is granted, the accused person will be prosecuted. If consent is withheld, the case may be closed through appropriate proceedings. It is obvious that this statute clearly vests in the AGI, the power to determine the rights of a person accused of committing an offence under the statute. Nothing in the decision of the CIC indicates that the ASG placed this statutory provision before the bench as part of his submissions. Therefore with the utmost respect to the wisdom of the CIC it is submitted that its findings about whether or not the AGI has powers to affect the rights of other persons are per incuriam as they do not take into account the entire gamut of the law on the subject.’’
Nayak has also demanded “judicial review of this decision on grounds of errors of law”.
(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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