The Delhi High Court has recently observed that the advice tendered by the Solicitor General of India to the Union Government and Government departments qualifies for the exception from disclosure under Section 8(1)(e) of the Right to Information Act, 2005.

The Single Judge Bench of Justice Subramonium Prasad was dealing with a Writ Petition filed by the Union of India challenging the order of the Central Information Commission (CIC) directing the Central Public Information Officer (CPIO), Department of Legal Affairs, Ministry of Law and Justice to provide a copy of the note/opinion of 2007 given by the then Solicitor General of India to the Department of Telecommunications, erstwhile Ministry of Communications and Information Technology vis-àvis various cases filed by the Cellular Operators Association of India before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and this Court regarding the allotment of 2G Spectrums.

The Union of India apprised the High Court that in the case titled Rajiv Ranjan Verma v. Government of India in Appeal No. CIC/SS/A/2011/000886, CIC has already held that any advice/opinion tendered by the Ministry to other Government Departments does not fall under the category of information available to the Law Ministry in a fiduciary capacity and Section 8(1)(e) of the RTI Act is not attracted with respect to such opinion/advices in any manner whatsoever.

It was further submitted that the Legal Opinion tendered by the Solicitor General to any Ministry is only tendered under a fiduciary relationship as established by law. Further reliance was placed upon the Judgment of the Apex Court in Kokkanda B. Poondacha v K.D. Gangapathi, (2011) 12 SCC 600 wherein the Apex Court provided that the nature of the relationship between a lawyer and a client is in the nature of a fiduciary relationship, and the relationship has a confidential character requiring a high degree of fidelity and personal trust.

On the other hand, the Respondent contended that in the present case, the Minister cannot be said to be a beneficiary of the Law Officer’s opinion. Respondent further stated that a public authority rendering an opinion to another public authority is for the benefit of the public at large. The Respondent further relied on a judgement of this Delhi High Court in Union of India v Col. V.K. Shaad, W.P. (C) 499/2012 and provided that in a relationship in an institutional setup, such as an inter-governmental one, a note provided by a personnel to another personnel cannot be said to give way to a fiduciary relationship.

It was also submitted that since the government and the various ministries are part of an institutional setup, the information or opinions provided inter-ministry should also not establish a relationship in the nature of a fiduciary.

The High Court after considering the submissions found no flaws in the Union Government's argument and affirmed that the connection between the Solicitor General of India and the Government of India is characterized by a fiduciary relationship, wherein the Solicitor General acts as the fiduciary and the government as the beneficiary.

The Court stated, "On the perusal of the Rules for engagement of Law Officers, it is seen that it is the duty of the Law Officers to give advice to the Government of India on legal matters. A Law Officer is not allowed to hold brief for any party except with the permission of the Government of India. The Law Officer is also restricted from advising any party against the Government of India or a Public Sector Undertaking."

The Court further observed that "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. This Court finds no infirmity with the argument put forth by the Ld. Counsel for the Petitioner that the advice tendered by the Ld. 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 Act has been invoked."

The Court while concluding also observed that, "Section 8(2) of the RTI Act can be pressed only if the conditions therein are satisfied, i.e. if public interest in disclosure outweighs the harm to the protected interest. 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 Court accordingly allowed the Petition.

Cause Title: Union of India and Anr v. Subhash Chandra Agrawal [W.P.(C) 4288/2012]

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