Bar & Bench: New Delhi: Saturday,
February 04, 2017.
A division
bench of Chief Justice G Rohini and Justice Jayant Nath delivered this verdict
in an appeal filed by the Centre challenging the decision of a single judge,
who had held that the office of the AG is a public authority within the meaning
of Section 2(h) of the RTI Act.
The Delhi
High Court
Justice Vibhu
Bakhru, in March 2015, had ruled that although the function of the AG was to
advise the government upon legal matters, his role was not limited to merely
acting as a lawyer. The AG, who is an ex-officio member of the Bar Council of
India, is considered to be the leader of the Bar.
ASG Sanjay
Jain, appearing for the Union, argued before the Division Bench that the AG
maintains a fiduciary relationship with the Government of India and does not
occupy an office of profit. He further submitted that none of the functions of
the AG involve the authority to alter the relations or rights of others.
ASG also
stated that the AG appointed occupies a position of great importance and
relevance and in some respects acts as a friend, philosopher, and guide of the
court.
While
Advocate Prashant Bhushan, appearing for RTI Activist Subhash Chandra Agrawal,
contended that the AG performs various important public functions apart from
extending legal advice and appearing on behalf of the government. He said that
whether the AG has acted in a fiduciary capacity or not has to be decided
according to the facts and circumstances of a given case.
The bench
delved into an analysis of the RTI Act, specifically Sections 2(h) and 2(j),
along with the duties of the Attorney General according to Article 76(2) and
the Law Officers (Condition of Service) Rules, 1972 framed by the central
government.
In its
judgment, the bench observed that according to these Rules, the functions of
the AG are to advise the government upon legal matters and to appear whenever
required in the Supreme Court or the High Court on behalf of the government.
Taking
into account the observations of the single judge, the Division Bench held,
“It
cannot be ignored that the predominant function of the AGI is to give advice
upon legal matters, to appear in court as stated, i.e. perform the duties akin
to an Advocate/Senior Advocate. The acts which have been noted by the learned
Single Judge as not forming part of the duties as an Advocate, namely, that the
Supreme court may take action for criminal contempt on a motion made by the AGI
or that the AGI is an ex officio member of the Bar Council of India represent a
small proportion of the duties of an AGI.”
The bench
further held that,
“The
essential services provided by the Attorney General of India are to advise the
government upon legal matters and perform other duties of such legal character
as may be assigned. The Attorney General is not a functionary reposed with any
administrative or other authority which affect the rights or liabilities of the
persons.”
In
conclusion, the bench allowed the appeal and dismissed the writ petition,
setting aside the single judge order stating,
“Looking
at the object of the Act, it appears to us that the government would not have
envisaged encompassing an office like that of the Attorney General to be
covered under Section 2(h).”
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