The attorney general (AG) is the government’s top law officer and is a functionary whose role is outlined by the constitution of India. No wonder, people assume that the office of the attorney general would come under the Right to Information Act.

However, on February 3, a division bench of the Delhi high court ruled that the AG and his office would be exempted from disclosing information – information that the public has a fundamental right to seek and receive from the government. The bench overturned a March 2010 judgement by a single bench which held that the AG and his office were a ‘public authority’ as defined under the RTI Act. The ruling – which creates new jurisprudence by eliding settled rules of statutory interpretation – raises troubling questions.

The crux of the matter is that the bench arrived at its decision by overruling the single judge. It held that notwithstanding the constitutional and legal provisions, the predominant function of the AG is to advise the government on legal matters and also represent the government in courts of law. Therefore, there exists a lawyer-client relationship between the government and the AG, with the latter acting in a fiduciary capacity. As a result, no information regarding the AG’s transactions with the government was amenable to public disclosure.

An important question that also arises is to how the division bench’s ruling will come to the aid of present attorney general Mukul Rohatgi, whose tenure has been marred by issues of propriety and public accountability.

The origin of the dispute

In 2013, RTI activists Subhash Chandra Agarwal and R.K. Jain moved the Delhi high court against a ruling by the Central Information Commission (CIC), which held that the AG could not be brought under the RTI Act. The commission had held that since the AG’s office could not be included within the definition of “state” under Article 12 of the constitution (any action for violation of fundamental rights can be taken only against a body or institution which is a part of “state” or any of its agencies), it did not have the authority to affect the legal relations of others and hence would not come under the purview of the RTI Act.

The commission also sided with the government’s contention that the AG’s office, being manned by a single person, did not have the infrastructural wherewithal to meet the requirements of the RTI Act, such as having a designated chief public relations officer to handle information queries.

The single judge’s reasoning

On March 10, 2015, Justice Vibhu Bhakhru struck down the ruling of the CIC. At the very outset, he relied on the judgement in Ravinder Balwani (2010), in which the high court held that given the fact that the term ‘public authority’ is clearly defined in Section 2(h)(a) of the RTI Act – any authority established under or by the constitution (and Article 76 of the constitution establishes the office and authority of the attorney general) – there is no need to apply the test of “state” under Article 12.

He also held that the term ‘authority’ in Section 2(h) (a) cannot be interpreted in a restrictive sense – it would also include all bodies or persons that have been conferred a power to carry out the functions entrusted to them.

Article 88 of the constitution grants the AG the right to take part in the proceedings of both houses of parliament

Rule 8 of the Law Officers (Conditions of Service) Rules, 1987 imposes a restriction on the AG – that as a law officer of the government, he shall not advise or appear for any private party, or defend an private party accused in a criminal case without the government’s nod.

Section 15 of the Contempt of Courts Act gives the AG the exclusive power and right to make a motion for criminal contempt before the Supreme Court and the court may act upon such a motion.

Relying on all these constitutional and statutory provisions and taking into account all these factors, Justice Bhakhru held that the AG is a public authority who speaks for the constitution and not merely the government’s top lawyer. “Merely because the bulk of the attorney general’s functions are advisory in nature, that does not make his office any less ‘authoritative’, he wrote in his judgement.

Judicial elision

The ethics and practice of judicial decision-making necessitates the giving of reasons for any ruling that is passed. This sacrosanct principle holds true not only for those cases where one judge disagrees with the finding of another judge, but also for those in which a larger bench overrules what a smaller bench held.

Surprisingly, in this particular case, the division bench of the high court seems to have jettisoned this rule. Instead, the bench, comprising justices G. Rohini and Jayant Nath, came up with a hitherto new test – whether the office of the AG was “state” under Article 12 of the constitution and whether his essential functions qualified him as a ‘public authority’ under the RTI Act.

Why did the court not go by the ruling in the Ravinder Balwani case and why did it not address Justice Bhakhru’s reasons while overruling his verdict? What were the grounds for the court to ignore the definition given in Section 2 (h) (a)? No reasons are forthcoming in the decision which Sanjay Hegde, senior advocate in the Supreme Court, terms “simplistic”. Hegde says that if at all the court wished to deviate from what is laid down in both the constitution and statute, the least it could have done was to substantiate its ruling with adequate reasoning.

Breather for Rohatgi

Since he was appointed attorney general in June 2014, Rohatgi’s tenure has been beset with controversies. Senior members of the bar have raised serious concerns about his impartiality and integrity and Rohatgi’s shrugging off these concerns without giving any explanations has only added grist to the mill.

First it was about his proximity to the ruling dispensation at the Centre, because Rohatgi had defended the Gujarat government in a slew of fake encounter and 2002 riots cases when Prime Minister Narendra Modi was chief minister. Second was about his appearing for the government in a case in which he had earlier represented a Welspun group company before the Supreme Court over a customs duty evasion matter. The government lost the appeal in the Supreme Court in November 2014. Third was Rohatgi’s holding the brief for Kerala bar owners in a case against the government in July 2015.

In all these instances of probable, nay possible, conflict of interest and bending of rules, Rohatgi has refrained from coming out with full disclosures about his exact role to allay all apprehensions.

In these circumstances, the ruling of the Delhi high court division bench’s ruling comes across as nothing short of judicial imprimatur to evading public accountability. This time, it is under the cloak of a court ruling and unless the judgement is reversed on appeal, the AG’s office will find it difficult to ward off the clouds of suspicion for obfuscating essential information.

Saurav divides his time between legal education and journalism and between Bombay and Delhi.