RTI Act and Legal professional Privlege
Querist :
Anonymous
(Querist) 15 September 2010
This query is : Resolved
Ld counsels,
How many of you agree to the following proposition with regards to the RTI Act and the legal professioanl privilege of a "Government Advocate" under section 126 of Indian Evidence Act.
1. The professioanl privilege is that of the client and not that of a lawyer and is conferred to protect the interests of the client.
2. Under the practical regime for transperancy enacted through RTI Act this privilege is not relevant for Government advocates.
3. The interest of the client in case of Governmet advocate or a pleader is the interest of the government which is already protected amply in the RTI Act subject to exemptions. Hence a government advocate has no "private interests of the client" to protect in order to claim privilege.
4. Therefore Government advocates cannot claim privilege under section 126 of Indian Evidence Act and need not look for the express consent of the client to diclose information as the client itself is under the purview of RTI Act.
5. Any exemption from disclosure of information need to be in accordance with the RTI Act.
Kindly give your dispassionate view on the above proposition.
Thanks
R.Ramachandran
(Expert) 15 September 2010
Dear Anonymous,
First let us be very clear about certain things. Section 126 of the Indian Evidence Act does not talk about "Government Advocates". It only talks about the relationship of Attorney and his client.
Thus, if an advocate represents the interests of the Government in a given case, the government is the client of the Advocate and as such provisions of Section 126 of Indian Evidence Act would be applicable.
RTI Act is applicable only to Public Authorities and an Advocate is not a public authority.
Thus, just because of Government Authorities are answerable under RTI does not ipso facto mean Advocates representing the Government case come under the purview of RTI Act and that they are bound to provide any information.
In other words, if any information is required by the public, the information has to be obtained straight from the Government Authority under the RTI Act, and not from the Advocate. Ordinarily Advocate is not bound to answer since RTI Act is not applicable to him. Further more, he can claim privilege of professional communication u/s. 126 of Indian Evidence Act.
Whether my above view is dispassionate or not, I do not know. But I am sure my above view is the current legal position.
If something over and above the existing legal provision is desirable or required, then it would be ones WISH LIST and cannot be answered with reference to the prevailing legal position.
Querist :
Anonymous
(Querist) 15 September 2010
Thank you sir,
Thats the popular view and perhaps the a defensive view of an advocate.
The WISH LIST is what is called PUBLIC INTEREST under RTI Act as long as an advocate holds a public office.
Judicial review is sought for matters related to appointment of government advocates although it is contractual strictly speaking, bcos government cannot act arbitrarily.
Why judicial review of the privilege not possible under ordinary cases after all it is the interest of government that an advocate protects.
Expecting a judicial reply and not a conditioned one.
R.Ramachandran
(Expert) 16 September 2010
Dear Mr. Anonymous,
You say that you are "Expecting a judicial reply and not a conditioned one."
I have already indicated that what I have stated "is the current legal position."
Points 2 to 5 of your original query does not fit in with the legal position and that is why I said that anything beyond the legal position is a WISH LIST.
Please take it, none of the Advocate who is worth his salt will ever comment upon anything beyond the given facts and legal provision, and to that extent will always add a condition that the views expressed are limited to the facts given.
Just because you may expect an unconditional view on a matter which is not within the four corners of law, does not mean that others have to necessarily succumb to that condition.
I do not know where from you derive the information that an advocate is "holding a public office". Please be rest assured that an office of Advocate is not a public office. At best advocate would be representing one client or the other. That's all to it. Just because an Advocate may represent a Government in a particular would not make him as holding a public office, and amenable to RTI Act.
When your fundamental assumption is wrong, then there can be no fetter to your imagination. That is why I said and repeat that what is not within the confines of existing law, will only be a WISH LIST and inshallah if such WISH LIST becomes a law, then whatever you say may be true. But currently your propositions does not fall under the existing legal position at all.
s.subramanian
(Expert) 16 September 2010
I agree that you raised a moot point for a good and intellectual debate on this issue. But i would like to state that when you are representing the Government,it is like an ordinary person whom you represent in other cases. Therefore the communication between yourself and your client i.e. the government becomes a privileged one under the Indian Evidence Act. Even though you are designated as Government Advocate,you do not fall under the ambit of the words Public Authority.It is the government alone whom you represent and not the public at large by any stretch of imagination. Hence in my humble opinion,you do not come under the purview of the RTI Act.
Querist :
Anonymous
(Querist) 16 September 2010
Dear Mr Ramachandran Sir,
If point 1 is accepted the other points 2-5 need to be accepted in light of the overriding effect of RTI Act. Below is the proviso:
Section 22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
A government advocate violates RTI by withholding information bocs the State's interest with regards to any information of its litigation is protected under the exemption provisions of RTI Act.
Moreover a government pleader's office is a public office there are judgements that confirms it.
Also in the interest of administration of justice the appointment/termination of government advocates cannot be arbitrary and a government lawyer is as much under the disciplinary control of government as he is under the bar council.
R.Ramachandran
(Expert) 16 September 2010
Mr. Anonymous,
I am sorry to say, but you miss out the finer nunces of the law.
All of us know that CJI of India is a Public Authority. In spite of that there is litigation going on whether he is holding the information about the assets of the Judges as a Public Authority or not!
When such is the kind of legal interpretations possible even where one is clearly a Public Authority, you are talking about Advocates amenable to RTI when the 'Advocates' are not public authorities under any stretch of imagination!
If at all one can seek information from the Government Authorities concerned and certainly not from the Advocates.
Bar Council of India controls the conduct of the Advocates only in regard to his professional conduct and ethics and not under RTI.
As already mentioned by me, when fundamentals legal provisios are not clear to you, you are bound to persist with your illogical views.
Querist :
Anonymous
(Querist) 16 September 2010
Dear Sir You may be right in your appraoch to appease my contentions. Now comes the real question given that my foundations on law is not that good.
I would like to state an example.
A public prosecutor is appointed as per the statutory requirement under section 24 of CrPC. Now communication made by the police officers cannot be said to be privileged communications bocs neither the police have any choice except to approach the public prosecutor nor the PP can refuse to represent the state.
Action taken by the PP is a public activity in compliace with a statutory requirement and there cannot be any confidentiality/secrecy as far as the action taken by PP for representing the government.
On the other hand if the police seeks opinion from PP and he accordingly gives it that can be deemed to be privileged communicaitons bcos this is not mandated by statute that police should seek opinion.
Kindly enlighten me as to what nuances am my missing here.
R.Ramachandran
(Expert) 17 September 2010
Dear Mr. Anonymous,
All I am saying is that in the example cited by you, you can seek information only from the Police Authorities and not from the PP, whether it is related to the case or it relates to the opinion rendered by the PP. This is for the reason, that the PP is not a Public Authority. And similarly, an Advocate is not a Public Authority, irrespective of the fact that he may represent the Government in any case or he might have rendered opinion to the Government.
Surrender K Singal
(Expert) 18 September 2010
Mr. Soni has opined well for the issue raised; PIO is the first office to be responsible under RTI Act and it is he who may gather the requisite info to be provided to the applicant, as PIO may opine;
Querist :
Anonymous
(Querist) 19 September 2010
Dear Mr. Ramachandran,
I do not agree with the conclusion that PP is not a public auithority. PP has disciplinary control over his office and his OFFICE is a public authority under RTI act. There is a need for a PIO for that office which cannot be refuted. Now it is the PIO of the office of public prosecutor who is a government servant has to respond under RTI act. It is clearly mis-construed that PP who is an advocate is equal to his office. His offce is a public office.
If this proposition is rejeted it will definitely create suspicion on the fucitons of the office.
There is an express exemption for information with regards to legal professional privilege under Freedom of Information Act 2000 of UK. Even that exemption is not absolute but qualified and subject to public interest test.
Only in this country vested interests are allowed to create lacuna even in the statutes itself.
R.Ramachandran
(Expert) 20 September 2010
Dear Mr. Anonymous,
Your point is well taken that PP is a Public Authority. ( I made a terrible mistake in saying that PP is not a public authority - though I intended that an Advocate representing a Government is not a public authority, since right from the beginning we were taking about Government Advocate meaning an Advocate representing the government. But that explanation of mine would not hold water since I used the word PP.)
Though PP is a Public Authority under RTI, nevertheless, the communication between him and the government is a privileged communication under Section 126 of the I.E. Act, and has been so held by Madras High Court. It was inter-alia held that Section 22 of the RTI Act providing an overriding effect over the Official Secrets Act or any other law could not undoubtedly override Section 126 of the Evidence Act.
Querist :
Anonymous
(Querist) 21 September 2010
Even in the judgement the order is passed against the Office Superintendent and not on the public prosecutor.
Once again the privilege is that of client that aspect was not at all dicussed. Government cannot hold privilege as absolute in the context of RTI thats my contention too.
The same judgement refers to Freedom of Information Act 2000 of UK but failed to note that it is not an absolute exemption but qualified.
Querist :
Anonymous
(Querist) 21 September 2010
Further the judgement of Madras HC held that the petitioner (office superindentent) is holding the information in the capacity of a counsel. I really doubt whether the office superintendent of office of PP is a counsel.
These are the 2 flaw that I find in the judgement,
1. Holding the petitioenr as a counsel.
2. Privilege is that of government which is not discussed.
If the petitioner is not a counsel he can very well be directed to give informaiton if public interest so warrants.
