Indian Express: Delhi: Thursday, 28th Dec 2023.
The Delhi High Court recently set aside a 2011 order of the Central Information Commission (CIC) that directed the disclosure of an opinion given in 2007 by the then Solicitor General of India to the Centre in various cases filed by the Cellular Operators Association of India (COAI) on the allotment of 2G spectrum.
A single-judge bench of Justice Subramonium Prasad in its December 20 order observed that as per the Law Officer (Conditions of Service) Rules, “it is the duty of the law officers to give advice to the Government of India on legal matters”.
The court observed that a law officer is not allowed to “hold briefs for any party except with the permission of the Government of India” and is also restricted from advising any party against the Government of India or a public sector undertaking.
Justice Prasad further said, “What can be seen from the Rules as well as the judgements of the Supreme Court is that the relationship between the Solicitor General of India and the Government of India is that of a fiduciary and a beneficiary. The Solicitor General of India is duty bound to work for the benefit of the Union and other departments in good faith, where there exists trust and reliance by the beneficiary upon the Ld. Solicitor General.”
The high court thereafter agreed with the Union of India’s argument that the advice tendered by the Solicitor General to the Union of India and other various government departments is “done in the nature of a fiduciary, and hence the exception of Section 8(1)(e) of the RTI [Right to Information] Act has been invoked”.
The high court further said that not all information can be disclosed under the purview of the RTI Act and the disclosure of such information which is exempted under Section 8 of the RTI Act for public interest should also ensure that the “disclosure in public interest should outweigh the harm caused to protected interests of a public authority or public functionary”.
Courts have to ensure that the disclosure of information (if need be) is done so while establishing a “proper balancing act between the right to information of a citizen and the various state functionaries”, Justice Prasad said.
“Just by simply stating that it is in public interest to disclose the information would not be sufficient unless weighty reasons are given as to how the information which is exempted from being provided under Section 8(1) of the RTI Act should be provided and as to how the public interest would outweigh the harm to the protected interest,” the high court said.
It thereafter observed that the RTI applicant had not been able to demonstrate what public interest would be subserved to invoke the provisions of Section 8(2) of the RTI Act. Section 8(2) allows disclosure of such information “if public interest in disclosure outweighs the harm to the protected interests”.
The Union of India had moved the high court after the CIC in its December 5, 2011 order allowed the plea of RTI applicant Subhash Chandra Agrawal, who had sought certain information and details regarding the allotment of 2G band/spectrum.
The CIC in its order had directed the Central Public Information Officer (CPIO), Department of Legal Affairs, Ministry of Law and Justice to provide a copy of the note or opinion of 2007 given by the then Solicitor General of India to the Department of Telecommunications, erstwhile Ministry of Communications and Information Technology vis-à-vis various cases filed by the COAI before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and the high court regarding the allotment of 2G spectrum.
The Delhi High Court recently set aside a 2011 order of the Central Information Commission (CIC) that directed the disclosure of an opinion given in 2007 by the then Solicitor General of India to the Centre in various cases filed by the Cellular Operators Association of India (COAI) on the allotment of 2G spectrum.
A single-judge bench of Justice Subramonium Prasad in its December 20 order observed that as per the Law Officer (Conditions of Service) Rules, “it is the duty of the law officers to give advice to the Government of India on legal matters”.
The court observed that a law officer is not allowed to “hold briefs for any party except with the permission of the Government of India” and is also restricted from advising any party against the Government of India or a public sector undertaking.
Justice Prasad further said, “What can be seen from the Rules as well as the judgements of the Supreme Court is that the relationship between the Solicitor General of India and the Government of India is that of a fiduciary and a beneficiary. The Solicitor General of India is duty bound to work for the benefit of the Union and other departments in good faith, where there exists trust and reliance by the beneficiary upon the Ld. Solicitor General.”
The high court thereafter agreed with the Union of India’s argument that the advice tendered by the Solicitor General to the Union of India and other various government departments is “done in the nature of a fiduciary, and hence the exception of Section 8(1)(e) of the RTI [Right to Information] Act has been invoked”.
The high court further said that not all information can be disclosed under the purview of the RTI Act and the disclosure of such information which is exempted under Section 8 of the RTI Act for public interest should also ensure that the “disclosure in public interest should outweigh the harm caused to protected interests of a public authority or public functionary”.
Courts have to ensure that the disclosure of information (if need be) is done so while establishing a “proper balancing act between the right to information of a citizen and the various state functionaries”, Justice Prasad said.
“Just by simply stating that it is in public interest to disclose the information would not be sufficient unless weighty reasons are given as to how the information which is exempted from being provided under Section 8(1) of the RTI Act should be provided and as to how the public interest would outweigh the harm to the protected interest,” the high court said.
It thereafter observed that the RTI applicant had not been able to demonstrate what public interest would be subserved to invoke the provisions of Section 8(2) of the RTI Act. Section 8(2) allows disclosure of such information “if public interest in disclosure outweighs the harm to the protected interests”.
The Union of India had moved the high court after the CIC in its December 5, 2011 order allowed the plea of RTI applicant Subhash Chandra Agrawal, who had sought certain information and details regarding the allotment of 2G band/spectrum.
The CIC in its order had directed the Central Public Information Officer (CPIO), Department of Legal Affairs, Ministry of Law and Justice to provide a copy of the note or opinion of 2007 given by the then Solicitor General of India to the Department of Telecommunications, erstwhile Ministry of Communications and Information Technology vis-à-vis various cases filed by the COAI before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and the high court regarding the allotment of 2G spectrum.
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