Solicitor General Of India's Opinion To Government Fiduciary In Nature, Exempted From Disclosure Under RTI Act: Delhi High Court

The Delhi High Court has accepted a submission that the advice tendered by the Solicitor General of India to the Union Government and government departments is done in the nature of fiduciary, and hence, the disclosure of such information would fall under the exception of Section 8(1)(e) of the Right to Information Act, 2005.

Justice Subramonium Prasad found no infirmity with Union Government's submission and said and that the relationship between the Solicitor General of India and Government of India is that of a fiduciary and a beneficiary.

The court said that the Solicitor General of India is duty bound to work for the benefit of the Union Government and its departments in good faith, where there exists trust and reliance by the beneficiary upon the former.

“This Court finds no infirmity with the argument put forth by the Ld. Counsel for the Petitioner 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,” the court said.

Justice Prasad made the observations while setting aside an order passed by the Central Information Commission (CIC) in 2011 directing the CPIO of Union Law Ministry to provide the copy of the note or opinion given in 2007 by the then Solicitor General of India to the Department of Telecommunications regarding various cases filed by Cellular Operators Association of India concerning the allotment of 2G Spectrums.

The RTI application was filed by one Subhash Chandra Agarwal on May 21, 2010. 

The court allowed Union Government's challenge against the CIC's order and said:

“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.”

Section 8(2) states that notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with Section 8(1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

“Just by simply stating that it is in public interest to disclose the information would not be sufficient unless weighty reasons are given as to how the information which is exempted from being provided under Section 8(1) of the RTI Act should be provided and as to how the public interest would outweigh the harm to the protected interest,” the court said.

It added that the disclosure of information as exempted under Section 8 for public interest should ensure that such disclosure should outweigh the harm caused to protected interests of a public authority or public functionary.

Justice Prasad said that the Court has to ensure that the disclosure of information, if need be, is done while establishing a proper balancing act between the right to information of a citizen and the various state functionaries.

Title: UNION OF INDIA AND ANR v. SUBHASH CHANDRA AGRAWAL

Citation: 2023 LiveLaw (Del) 1336

Click Here To Read Order