Union of India v. Ramanand Tiwari

1. As these petitions involve identical issues, both have been heard together and are being disposed ofby this common order. There is no appearancefortherespondentsin boththewritpetitions.

2. The facts in W.P.(C) 2655/2017 are, on September 25, 2014, respondent Ramanand Tiwari filed an application under Right to 2019:DHC:7559 Information Act,2005('Actof2005'in short)before the CPIO,Department of Legal Affairs seeking certified copy of the opinion of the learned Attorney General ofIndia('AG' in short), on the request ofthe CBI with regard to necessity for obtaining sanction in relation to prosecution ofEx- Chief Minister of Maharashtra. Since the opinion of the learned AG was soughtfor by the CBIfor which the petitioner Department,i.e..Department ^ of Personnel and Training is the administrative Ministry as per Govt. of India(Allocation ofBusiness)Rules,1961,the DepartmentofLegal Affairs transferredtheRTIapplicationtothe CPIO ofthe petitioner organization.

3. On October 17,2014,CPIO has declined to provide the information on the ground that the same is exempted under Section 8(l)(e)&(h)ofthe Actof2005. OnOctober25,2014,therespondentfiled an appealbeforethe first appellate authority. Itisthe case ofthe petitioner thatthe appeal was examined andthe appellate authorityfindingthe decision ofthe CPIOto be in accordance with law disposed of the appeal as no forther action was required. Thus,respondentfileda2"^AppealbeforetheCentralInformation Commission(in short'CIC')on January 29,2015. The CIC m its order dated June 28,2016 by relying upon its earlier decision dated June[8],2015, wherein it was held that a lawyer can claim to be in fiduciary relationship with his clients and not vice-versa, held that plea offiduciary relationship was not available with the petitioner but only with the learned AG. As a result the CIC had directed the petitioner to provide information to the respondentwithinfour weeksfrom thereceiptofits order.

4. The facts in W.P.(C) 2672/2017 are, on February 14, 2014, respondent Rajender Kumar filed an application under the Act of 2005 before the CPIO, Department of Personnel and Training, seeking three information,which are as under:

"I. Copiesofallreferences/correspondence made by CBI to the Ministry of Law and Justice through Dept. Of Personnel and Training, in connection with Ishrat Jahan encounter case and CBI FIR No. SCB Mumbai RC- BSl/SI/2011/0005-2011 dated 16.12.2011 and also the reply given by the Ministry / Department to CBI or any other departmentin this connection. II Copyofthe CBIletterand/or reference by the CBIin the above caseseeking the opinion ofthe Attorney Generalof India, sent through Department ofPersonnel and Training about the requirement / necessity ofseeking sanction for prosecution ofserving and retired officers ofIntelligence Bureau (Ministry ofHome Affairs), Government ofIndia, m. connection with the Ishrat Jahan encounter case and CBI FIR No. SCB Mumbai RC-BSl/SI/2011/0005-2011 dated 16.12.2011. in. Copy ofthe opinion ofthe Attorney General sent to CBI or its controlling authority (Department ofPersonnel and Training)in thecase mentionedinPara 1 and2above. '■ ■' t ll

5. On February 19, 2014, CPIO declined to provide the information as being exempted under section 8(l)(e)&(h) ofthe Act of 2005. On February 26, 2014, respondent filed the Appeal. The First Appellate Authority vide its order dated April 7, 2014 found the decision of the CPIO to be in accordance with law and held that the information as regards the opinion of the learned AG is exempted under Section 8 (l)(e)(g) and (j) of the Act of 2005 and accordingly disposed of the appeal. On August 4, 2014, respondent filed 2"^^ Appeal before the CIC, which passed the impugned order relying upon its earlier decision dated June 8, 2015 wherein it was held that a lawyer can claim to be in fiduciary relationship with his client and not vice-versa, and held that the plea of fiduciary relationship was not available with the petitioner, but only with the learned AG.

6. With regard to query nos. 1 and 2, the CIC held the same relates to CBI, which is exempted under Section 24 (1) of the Act of 2005 and thus other information was not obtainable under the Act of2005. In other words, with regard to the opinion of the learned AG, as sought by the CBI, with respect to prosecution ofoffenders, CIC has only held that exemption under Section 8 (1) (e) did not apply to it.

7. Mr. Jasmeet Singh, learned counsel appearing for the petitioner submits that CIC failed to appreciate that the privilege accorded to communication between an advocate and client is in the interest ofjustice and is necessary for full and frank discourse between the two in respect of all as aspects of a matter. In other words, it is his submission that, it is a well settled law that a lawyer and the client are in the nature offiduciary relationship and for such information exchanged in furtherance of such relationship are entitled to be covered under the exemption under Section 8(l)(e) of the Act of 2005. He submits in the case in hand, the communication between the learned AG and the Government needs to be protected in the national interest due to sensitivity ofthe issue in respect of which privileged communication may be exchanged. That apart, it is his submissionthatthe protection accorded tothefiduciaryrelationship between an advocate and his client under Section 8 (l)(e) of the Act of 2005 is equally applicableinview ofSection 126oftheIndianEvidence Act,which permits disclosure only ifclient expresses consent. Itis hissubmissionthat the view ofthe CIC thatthe fiduciary relationship is qua relationship ofthe learned AG and his client, i.e.,the petitioner herein,but the petitioner does not hold such a position would mean that what cannot be done directly can be done indirectly. That apart, it is his submission that CIC has failed to appreciate that the respondent has sought disclosure of legal opinion tendered by the Id. AG,which disclosure would interfere and impede with the prosecution ofthe offenders in the particular cases and thus needs to be protected under Section 8(l)(h) of the Act of 2005. In support his submission, Mr. Singh, would rely upon the Judgments of the Punjab and HaryanaHigh Courtand GauhatiHigh Courtin the cases ofKaramjitSingh

V. State ofPunjab and Ors. MANU/PH/2352/2009 and Binoya Dutta v.

State ofMeghalaya and Ors., MANU/GH/0874/2009. According to Mr. Singh, in Binoya Dutta (supra), the Gauhati High Court has clearly held that the communication between the Advocate General with the State Governmentcannotbe disclosed in view ofSection 8(l)(e)ofthe Actunless larger public interest warrants disclosure ofsuch information,which is not the case ofthe respondents herein.

8. I agree with the submissions made by Mr.Jasmeet Singh by relying upon the Judgement ofthe Gauhati High Court wherein in Para 13, it is stated as under: "13. The relationship between the Advocate General and the State Governmentas wellas with the departments ofthe State Government isfiduciary in nature, as it is based on trustand confidence. TheState Governmentreposes special confidence on the Advocate General, who is bound to actin good faith with due regard to the interest of the State Government and who is to protect the interest ofthe State Government. Any communication issued by the Advocate Generaltoprotectthe interestofthe State Government,and which is notfor his own interest or benefit butfor the benefit ofthe State Government as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and the high degree ofgoodfaith on the other, are the information available to the State Government or its departments in fiduciary relationship with the Advocate General. The Advocate General woes to the State Government the duties of good faith, trust and confidence and he has a duty to actfor and give advice to the Government on the matters falls within their relationship. Any communication between the Advocate General and the State or its instrumentalities issued in order to perform the duties of a legal character cannot therefore be disclosed, in view ofthe exemption enumerated in Section 8(1) (e) ofthe Act, unless larger public interest warrants the disclosure ofsuch information. It is not the case ofthe Petitioner that the communications between the Advocate General and the department of the State Government as well as the Chief Secretary of the State though are exemptedfrom disclosure under Section 8(1)(e) of the Act, since disclosure of such informations are required in larger public interest, such disclosure is required to be made.It is also notthe case ofthe Petitioner thatpartofsuch informations can be disclosed by invoking the provisions of Section 10 of the Act. Perusal of the communications, which have not been furnished to the Petitioner, reveals that those were issuedfor the benefit of the State Government and not for personal benefit or interest of anyone. There is also no overriding^ public interestinvolvedfor disclosure ofsuch information.

9. In the case in hand also there is nothing in the orders passed by the CIC that indicates existence of any larger public interest warranting J, - ■ ' X disclosure ofthe information as sought. The impugned orders are set aside. The petitions are disposed of.

10. In view of my aforesaid conclusion, the plea of Mr. Jasmeet Singh from the perspective ofSection 126 ofthe Evidence Actis notrequired to be gone into more particularly,the issue has to be seen from the perspective of the RTI Act. CM No.11552/2017 in W.P.(Q 2655/2017(for stay) CM No.11603/2017 in W.P.(0 2672/2017(for stay) Dismissed asinfructuous. |. ||s,. V.KAMESWARRAO^J MAY 09,2019/ig Corrected and released on dune,2019.