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).”