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2015 (3) TMI 942 - DELHI HIGH COURT

2015 (3) TMI 942 - DELHI HIGH COURT - 2015 (319) E.L.T. 276 (Del.) - Refusal of information sought by appellants - Whether the Office of Attorney General of India is a 'public authority’ within the meaning of section 2(h) of the Right to Information Act, 2005 - Held that:- term "authority" as used in the opening sentence of Section 2(h) of the Act cannot be interpreted in a restrictive sense. The expression "authority" would also include all persons or bodies that have been conferred a power to .....

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isory functions. - there would be a practical difficulty as the office of the Attorney General is only a skeletal office which only consists of the appointee and the appointee’s is personal staff. In my view, this cannot be considered as a reason for excluding the applicability of the Act on a public authority. - impugned order is set aside and the matter is remanded to the CIC to consider the other contentions urged by the petitioners before the CIC. - Decided in favour of appellants. - W.P.(C) .....

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the meaning of section 2(h) of the Right to Information Act, 2005 (hereafter the 'RTI Act )? 2. The petitioners impugn an order dated 10.12.2012 (hereinafter referred to as the 'impugned order ) passed by the Central Information Commission (hereafter 'the CIC ) holding that the office of Attorney General of India (hereinafter referred to as the 'AGI') is not a Public Authority under Section 2(h) of the RTI Act. The petitioner in W.P.(C) No.1665/2013 has also challenged a let .....

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that as per the full Bench decision of the CIC, the AGI is not a "public authority". Shri R.K. Jain has, therefore, challenged the impugned order dated 10.12.2012 and also prayed that a direction be issued to the respondent to provide the information as sought for by him. 3.2 Subhash Chandra Agrawal, the petitioner in W.P.(C) No.1041/2013 filed an application dated 15.11.2011, addressed to the CPIO office of the AGI, seeking certain information under the RTI Act. It is asserted that t .....

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the CIC rejected the complaint filed by the petitioner in W.P.(C) No.1041/2013 by holding that AGI was not a "Public Authority" within the meaning of Section 2(h) of the Act. The CIC was of the opinion that the AGI was only a person and could not be considered as an "authority" and, therefore, fell outside the sweep of Section 2(h) of the RTI Act. 5. The CIC referred to the following passage from the decision of the Supreme Court in Som Prakash Rekhi v. Union of India and An .....

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you cannot call it an authority. A ration shop run by a cooperative store financed by government is not an authority, being a mere merchant, not a sharer of State power. 'Authority in law belong to the province of power: 'Authority (in Administrative Law) is a body having jurisdiction in certain matters of a public nature. Therefore, the 'ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties; liabilities or other legal relation .....

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he Constitution of India and, therefore, AGI would be answerable to the people of India. It was further contended that the right to information is a fundamental right under Article 19(1)(a) of the Constitution of India and, therefore, the RTI Act must be interpreted in furtherance of the said fundamental right. 7. The petitioners further referred to the decision of the Supreme Court in B.P.Singhal v. Union of India: (2010) 6 SCC 331 to contend that the AGI holds a public office. It was further c .....

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ment of India and is in a sui generis position under the Constitution of India. It is contended that the functions performed by AGI neither alter the rights of any person nor bind the Government of India; therefore, the AGI could not be construed as an "authority". The learned counsel for the respondent referred to the decision of the Supreme Court in Sukhdev Singh v. Bhagatram: (1975) 1 SCC 421 in support of his contention that the term "authority" refers to the power to alt .....

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ort the applicability of the RTI Act inasmuch as, the AGI is a single person office and, therefore, would have to act as a CPIO as well as the Appellate Authority. Since the same is not feasible, the AGI cannot be held as 'Public Authority . 10. Section 2(h) of the RTI Act defines "Public Authority" and reads as under:- "(h) "public authority" means any authority or body or institution of self-government established or constituted,- (a) by or under the Constitution; .....

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;76. Attorney-General for India.- (1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India. (2) It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any .....

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e AGI are governed under the said Rules which have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. By virtue of Rule 2(d) of the said Rules, the expression 'Law Officer includes the AGI. Rule 5 of the said Rules provides for the duties of a Law Officer and reads as under:- "5. Duties - It shall be the duty of a Law Officer - (a) to give advice to the Government of India upon such legal matters, and to perform such other duties .....

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the Constitution; and (d) to discharge such other functions as are conferred on a Law Officer by or under the Constitution or any other Law for the time being in force." 13. Rule 6 of the said Rules provides for the entitlement of leave and Rule 7 of the said Rules prescribes the remuneration, fee and allowances payable to the Law Officers. By virtue of Rule 7(2)(d) of the said Rules, the AGI is also entitled for sumptuary allowance in addition to other fees and allowances. Rule 9 of the sa .....

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lephone calls or such charges for telephone calls in respect of the residential telephone as the Government of India may, from time to time, determine in this regard; "Explanation - For the purpose of this rule " Personal staff' means:- (i) in the case of Attorney General and Solicitor General - a Principal Private Secretary in the appropriate grade, a stenographer and a jamadar; (ii) in the case of Additional Solicitor General - a Private Secretary in the appropriate grade, a sten .....

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ty, Government School or College, local authority, Public Service Commission, Port Trust, Port Commissioners, Government aided or Government managed hospitals, a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), any Corporation owned or controlled by the State, any body or institution in which the Government has a preponderating interest; (b) advice any party against the Government of India or a Public Sector Undertaking, or in cases in which he is likely to be .....

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received through the Ministry of Law and Justice, Department of Legal Affairs." (2). Where a Law Officer appears or does other work on behalf of bodies of Union of India such as the Election Commission, the Union Public Service Commission etc. he shall only be entitled to fees on the scales mentioned in clauses (c) of sub - rule (1) of rule 7." 15. Article 88 of the Constitution of India expressly provides that "every Minister and the Attorney-General of India shall have the right .....

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e Contempt of Courts Act, 1972, the Supreme Court may take an action for criminal contempt on a motion made by the AGI or the Solicitor General. Thus, the AGI also has the right to move a motion in case of a criminal contempt, before the Supreme Court. 18. The AGI is also an ex officio member of the Bar Council of India and is also considered as a leader of the Bar. 19. It is apparent from the above that the role of the AGI is not limited to merely acting as a lawyer for the Government of India .....

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ed as an authority since the office of Attorney General of India does not have the power to alter, by his own will directed to that end, the rights, duties; liabilities or other legal relations, either of himself or of other. 21. I am unable to accept the aforesaid contention, for the reason that the term "authority" as used in the opening sentence of Section 2(h) of the Act cannot be interpreted in a restrictive sense. The expression "authority" would also include all person .....

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exclude bodies or entities which are, essentially, performing advisory functions. 22. In my view, the expression "authority" as used in Section 2(h) of the Act would encompass any office that is conferred with any statutory or constitutional power. The office of the AGI is an office established under the Constitution of India; the incumbent appointed to that office discharges functions as provided under the Constitution. Article 76(2) of the Constitution expressly provides that the AGI .....

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he purposes of the RTI Act, there is no warrant for incorporating the tests evolved by the Supreme Court in Pradeep Kumar Biswas for the purposes of Article 12 of the Constitution is likely to be a 'public authority under the RTI Act, the converse need not be necessarily true. Given the purpose and object of the RTI Act the only consideration is whether the body in question answers the description of a 'public authority under Section 2(h) of the RTI Act. There is no need to turn to the C .....

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r the Constitution of India would clearly fall within the definition of Section 2(h) of the RTI Act. Even in common parlance, the AGI has always been understood as a constitutional authority. 25. The decisions of the Supreme Court in Sukhdev Singh (supra) and Som Prakash Rekhi (supra) are rendered under Article 12 of the Constitution of India and it may not be apposite to apply them for interpreting Section 2(h) of the RTI Act. The question before the Supreme Court in Sukhdev Singh (supra) was w .....

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State. One of the reasons that persuaded the Supreme Court to take this view was the functions that were performed by the Corporations in question. In Sukhdev Singh (supra), the Supreme Court observed that "a public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transaction for the benefit of the public and not for private profit". 26. In Som Prakash Rekhi (supra), the Supreme Court referred to law lexicon or Bri .....

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