Should the attorney-general’s office be exempt from mandatory disclosures under the Right to Information Act? The Delhi High Court thinks so, but RTI activist Subhash Chandra Agarwal has decided to take the fight to the Supreme Court. On 3 March, in a Special Leave Petition in appeal against the Delhi High Court’s ruling, Sharma has cited provisions of both the Constitution of India as well as the RTI Act to contend that the attorney-general’s office shouldn’t be allowed the leeway of non-disclosure.
Agarwal’s appeal is not a sudden development — it is only the logical next step in his running fight with the government that is determined to shield the attorney-general’s office, presently occupied by Mukul Rohatgi, from the likely (and unlikely) consequences of being brought under the RTI Act. This is because the attorney-general, owing to his post, is privy to a considerable amount of confidential information that, if made public, could spring some unsavoury surprises for the government.
Seen in context, the government’s staunch reluctance could possibly stem from the fact that Rohatgi’s role and functioning has come in for criticism from a host of quarters — including senior lawyers — in the recent past. For instance, in a 2016 article in Outlook, journalist Ushinor Majumdar detailed how people at senior levels in the lawyer’s profession are questioning Rohatgi’s scruples, and his suitability for holding a constitutional position.
On 3 February this year, a division bench of the court ruled that the scheme of the RTI Act precluded the attorney-general and his office from being brought within its ambit. The bench held that the attorney-general and his office would be exempt from the RTI Act, thus overruling a March 2015 single bench judgement that held to the contrary.
The division bench held that the predominant function of the attorney-general is to advise the government on legal matters and also represent the government in courts of law. Therefore, there exists a lawyer-client relationship between the government and the attorney-general, with the latter acting in a fiduciary capacity. As a result, no information regarding the attorney-general’s transactions with the government was amenable to public disclosure.
It is this finding of the court that Agarwal has challenged in his appeal.
Advisory functions also come under RTI
Agarwal’s lawyer Prashant Bhushan has referred to the definition of "information" given in Section 2(f) of the Act. According to this provision, "information" also includes opinions and advice of a public authority. Section 2(h) of the RTI Act describes a public authority as any authority formed under the constitution, and the constitution’s Article 88 creates the office of the Attorney General.
Thus, the words "opinions" and "advice" signify that if any public authority advises or gives opinions, it will be treated as information that warrants public disclosure, and the definition of public authority cannot be interpreted to exclude bodies that are performing essentially advisory functions.
The RTI Act overrides other laws
The RTI Act contains a provision — Section 22 — that states that it should prevail over all other laws regarding disclosure (or otherwise) of information to the public, including even the Official Secrets Act. So, even if disclosure of information is prohibited by any other law, such prohibition would be invalid if the RTI Act does not provide for this.
In the Jayantilal Mistry case of 2015, the Supreme Court upheld the constitutional validity of Section 22.
These are the points upon which Agarwal is relying to contend that since the RTI Act does not say that information about the attorney-general’s office cannot be disclosed to the public, the government is wrong in concealing such information. Since 2013, Agarwal has been fighting the government over disclosure of information from the attorney-general’s office. Now, if the Supreme Court rules in his favour, public accountability will get another boost.
Updated Date: Mar 16, 2017 10:32 AM