The Delhi High Court recently held that the legal advice given by the Solicitor General of India to the Government of India and other government departments is exempt from disclosure as per Section 8(1)(e) of the Right to Information Act of 2005 (RTI Act) [Union of India and Anr v Subhash Chandra Agrawal]. 

Justice Subramonium Prasad observed that as per the rules of engagement of a law officer for Union of India -- Law Officer (Conditions of Service) Rules, 1987 – and the judgements of the Supreme Court, the relationship between the Solicitor General of India and the Government of India is that of a fiduciary and a beneficiary.

The Solicitor General 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 Solicitor General, the Court stressed.

“This Court finds no infirmity with the argument put forth by the Ld. Counsel for the Petitioner [Union of India] 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,” Justice Prasad concluded.

The Court came to this conclusion as it set aside an order passed by the Central Information Commissioner (CIC) on December 5, 2011 in the case filed by one Subhash Chandra Agrawal.

The Central government had filed the plea challenging the CIC order which directed the Central Public Information Officer (CPIO) of the Ministry of Law and Justice to provide the copy of the note/opinion of 2007 given by the then Solicitor General of India to the Department of Telecommunications of erstwhile Ministry of Communications and Information Technology.

The information related to the various cases filed by the Cellular Operators Association of India before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and the Delhi High Court regarding the allotment of 2G spectrum.

After considering the case, Justice Prasad held that even though Section 8(2) of RTI Act provides that if exempted information has the effect of bolstering the private decision-making of individuals and accountability, the same can be provided, this relief cannot be pressed in this case.

The Court held that Agrawal failed to demonstrate as to what is the public interest that would be subserved by procuring the details of the advice of the Solicitor General.

“The petitioner has not been able to demonstrate as to what is the public interest that would be subserved so as to invoke the provisions of Section 8(2) of the RTI Act. In the absence of any public interest, the information sought for by the Respondent, which is exempted under Section 8(1) of the RTI Act, this Court is not inclined to invoke the provisions of Section 8(2) of the RTI Act.”

The Court then proceeded to set aside the CIC order and disposed of the plea.

Advocates Ruchir Mishra, Sanjiv Kr Saxena, Mukesh Kr Tiwari, Ramneek Mishra and Poonam Mishra appeared for the Union of India.

Advocates Suroor Mandeer and Ria Yadav represented Subhash Chandra Agrawal.

[Read Judgment]