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Kerala HC Rules Legal Advice by Advocate General to Govt. Exempted from RTI Disclosure

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High Court of Kerala Antiques fraud Investigation

Priyanka Singh

Published on: October 1, 2022 at 19:05 IST

On Friday, the Kerala High Court held that the legal advice provided by the Advocate General to the Government is excluded from disclosure u/s 8(1)(e) of the Right to Information Act, 2005 (RTI) as they share a fiduciary relationship between the two.

Section 8(1)(e) –

Under the section, the RTI Act provides for the exemption of disclosure of information available to a person in their fiduciary relationship.

Justice PV Kunhikrishnan ruled that, “…there may be delicate and sensitive issues, in which the Government wants the opinion of the Advocate General. Those are confidential communications between the Government and the Advocate General.”

“The legal opinions given by the Advocate General to the Government should always be confidential. That is protected under Section 8(1)(e) of the Act 2005.” [Joginder Singh Wasu vs. State of Punjab (1994)]

The Court had earlier upheld the relationship between a lawyer and his client as a fiduciary one, also protected under the same section of the RTI Act.

The ruling was passed on two appeals before the Court filed by the Advocate General’s office which was against an order passed by the State Information Commission, where it was held in the Lavalin case that, an applicant is entitled to a copy of Advocate General’s legal advice.

The RTI request included –

  • Certificate copy of the legal advice rendered by the Advocate General’s Office to proceed with the appeal against the judgment of Justice V. Ramkumar in the case of Murukesan vs. State of Kerala.
  • The legal advice given by the Advocate General’s Office to proceed with the appeal against the division bench’s decision.
  • The certified copy of the order appointing Senior Counsel Advocate Rao, who also appeared for the Government of Kerala.
  • Details of Expenses incurred by the Kerala Government in both the appeals, also including the professional fee of the counsel in the Supreme Court.

The Response –

In case of the appointment of Senior Advocate Rao, and the expenses incurred, SPIO responded in negative regarding the possession of information of such appointment, also not knowing about the expenses incurred by the Kerala Government in both the appeals yet.

The request for the certified copy of the legal advice by the Advocate General was rejected on the ground of no such advice being in existence.

It was stated by the SPIO that there existed a fiduciary relationship between the Government and the Advocate General, which was also confirmed by the Appellate Authority.

However, in the second appeal before the State Information Commission, it was directed for a probable furnishing of the details by the petitioners which immediately faced opposition via a writ petition.

The High Court Saga –

On behalf of the petitioners, Special Government Pleader, T. B Hood contended that the information sought by the respondent was a legal opinion, resulting in exemption from disclosure under Section 8(1)(e) of the RTI Act, 2005.

The counsel submitted the constitution of a fiduciary relationship, relying on the case of Supreme Court of India vs. Subhash Chandra Agarwal (2020).

The Counsel also submitted the provisions under Section 126 of the Indian Evidence Act, granting confidentiality between the Advocate General and the Government.

The contentions also included the clarification that a lawyer of the government is not an employee but just a professional practitioner.

The Standing Counsel for the State Information Commission M. Ajay, Advocates P. K Ibrahim and C. V. Anthony, appearing on behalf of the respondents in the two writs submitted the advice of the Advocate General being a part of the file itself, hence, free from the bars of Section 8(1)(e).

Rejecting the above contentions, the Court said, The legal opinions given by the Advocate General to the Government should always be confidential. That is protected under Section 8(1)(e) of the Act . If it is protected under Section 8(1)(e) of the Act 2005, the overriding effect of Section 22 of the Act to the Evidence Act will also not be available.”

“In such circumstances, Section 126 of the Indian Evidence Act is also applicable as far as a legal opinion given by the Advocate General to the Government is concerned,” thus, setting aside the order passed by the SIC.