Governance Now
Jasleen Kaur
New Delhi

Is CIC trying to limit RTI with order on attorney general?

Experts criticise CIC’s declaration that the attorney general is not a public authority, and thus cannot be under the ambit of RTI Act
The chief information commission (CIC) might have struck another blow on the momentous Right to Information Act with its recent ruling that the attorney general (AG) is not bound to answer RTI queries.

The declaration has drawn flak from RTI activists, experts and former information commissioners.

According to the CIC, the AG is not a public authority under the RTI Act, as he is a standalone counsel of the government and gives legal advice to the government, which is not binding in nature. This has also ignited a debate over the definition of a public authority.

The AG had submitted before the CIC that his office was different from that of the comptroller and auditor general (CAG) of India, or the election commission, as these are agencies. But experts argue that AG, the key legal advisor to the union government, is a public officer.

Shailesh Gandhi, former information commissioner at CIC, said though he is “surprised” as the CIC’s assertion, he had come across similar statements when he was a commissioner. “The first thing I heard was that the prime minister’s relief fund is not a public authority,” Gandhi said. “Then the CIC said that the chief justice is not a public authority but agreed that the information it (chief justice) held should be disclosed.

“So independently they might not be a public authority but the information they have should be made public.”

According to Gandhi, if a government consults a private lawyer he does not become a public authority. But an AG, he added, is appointed under the constitution and paid for by the government.

Nikhil Dey, co-convener of the NGO ‘National Campaign for Peoples' Right to Information’ (NCPRI), said he fails to understand why the AG should not be under the jurisdiction of RTI. “The attorney general’s office, and he (AG) himself, is absolutely a public authority. They must be covered under the RTI,” he said.

The CIC’s conclusion is based on Article 76(1) of the constitution, which says “the president of India shall appoint ‘a person’ who is qualified to be appointed a judge of supreme court to be AG of India”. Section 2(h) of RTI Act says, “Public authority means any authority or body or institution or self-governance established or constituted...”

The CIC’s decision was issued while hearing the application of prominent RTI activist Subhash Chandra Agrawal, Ajitab Sinha and another applicant. The CIC bench took this decision on the second appeals filed by Agrawal, Sinha and Maniram Sharma. While there was no response on Agarwal’s earlier queries, the AG office had stated on other appellants queries that the “AG for India is not a public authority as per RTI Act”.

Additional solicitor general (ASG), who represented AG in court, contended that AG is a standalone counsel of the government. He emphasised that the attorney general is a person, and not an authority or institution of self-government. Calling the relation between the government and the attorney general that of a lawyer and client, the ASG also said that the AG does not report to any authority, as is contemplated under Section 25 of the RTI Act.

Experts slam decision

But Venkatesh Nayak, also a co-convener at NCPRI, contended that the CIC’s decision will completely insulate information held by AG, which is not permissible under RTI. “If he is not a public authority, they should at least make the information held by him accessible in some form. It should be available under some other authority or ministry,” Nayak said.

He said though it is difficult to compare the AG with their counterparts in states, as the AG is appointed by the president and advocates general by governors, it should at least be recognised that the post is constitutionally created and thus becomes a public office.

Jagdeep Chhokar, a founding member of the Association for Democratic Reforms (ADR), said the CIC has not got the correct appreciation as the AG is certainly a public authority appointed by constitution.

The CIC has an important role to play in defending RTI and it must work to strengthen the Act and extend its ambit for more transparency, he said.

Besides, experts pointed out, this is not the first attempt to dilute or weaken this transparency act.

Earlier in September, the supreme court (SC) had ordered that only sitting or retired justices of high courts and SC should be appointed as chief information commissioners at both the Centre and in states. Activists had then expressed fear that this direction might lead to delays in disposal of cases. Since there is no clarity on the decision, many state information commissions stopped working, as they reported unfilled vacancies for information commissioner and said it would take time to implement the changes ordered by the apex court.

UPA not serious about RTI?

In its common minimum programme, the UPA government had declared that the RTI Act will be made more progressive, participatory and meaningful. But the government has of late faced flak for plans to introduce a series of amendments that would have weakened the Act.

It was only after Congress president Sonia Gandhi’s intervention last month that the proposals were dropped. The proposed amendments would have exempted file notings from being disclosed (read RTI: No-dilution decision triggers some elation).

The CIC’s most recent order is seen critically also because it had, last year, asked the government to provide information to citizens on public-private partnership (PPP) projects to make them transparent and accountable. It had even asked the planning commission to insert a clause for providing information to citizens in agreement with the private partners.

But the panel was opposed to bringing PPP projects under the RTI Act’s ambit.

Now, the same commission is contending that a public office like that of the attorney general’s should not to be covered by the RTI.

No lawyers in courtroom?

Amid this debate, prominent RTI activist and applicant Subhash Chandra Agrawal also raised the concern for ordinary petitioners appearing before information commissions, stressing that they are no match to government authorities armed with lawyers — at public expense.

During the hearing of the case at CIC, attorney general GE Vahanvati was represented by ASG Sidharth Luthra.

In his complaint, Agrawal pointed out that it is a classic example to establish that ordinary petitioners are at a disadvantage in the courtroom. “Officers handling RTI petitions at public authorities should be capable enough to represent themselves before the commission,” he said. “There has been an instance when public information officer of the Central Bank of India was penalised by the chief information commissioner for paying his lawyer-friend from public authority to appear before the commission without even elementary knowledge of the case.”

Lawyers should thus be barred from appearing for public authorities “for equality before information commissions”, he argued.

This concern has got mixed reactions from those who use the RTI Act regularly. While activists agreed that lawyers could be stopped from enter the courtroom, they said it is not feasible. They voiced concern that it is equally important for the information commission to perform its duty and save the RTI Act.

Nikhil Dey said barring a lawyer from entering the courtroom has to be thought about. “Law does not allow you to bar a lawyer, so obviously you need an amendment,” he said. “While public authorities have huge resources at their disposal, sometime even applicants use them. We have been dependent on Prashant Bhushan (senior SC lawyer) for many of our cases.”

More importantly, he added, the commission should take a neutral stand in favour of disclosure.

Agreeing that a lawyer cannot be prevented from defending a public authority or office at the CIC, Venkatesh Nayak said, “A common man who does not know law might be at a disadvantage but the CIC needs to take a call on it. If officers cannot defend themselves, they have no right to hold that position. Why should they be represented by a private lawyer?”

Adding to this, Shailesh Gandhi said it is the responsibility of the commissioner to ensure there is equality in the courtroom. Also, the commissioner must interpret the law if it is not understood to make it different from a regular court.

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