Law officers’ opinions can be made public by Anuja & Nikhil Kanekal

In a move that would usher in greater transparency, the Central Information Commission (CIC) ordered that legal opinion sought internally by the government can be made public.

 

The decision is also significant because it could compound the political problems of the Congress-led United Progressive Alliance (UPA), which is impacted by a series of allegations of corruption, some of which have been revealed through filing of queries under Right to Information (RTI).

The order was delivered in the context of an opinion given by attorney general Goolam E. Vahanvati, while he was serving as India’s solicitor general, to former telecom minister A. Raja on whether Swan Telecom Pvt. Ltd needed to be investigated by the ministry of corporate affairs in connection with ownership irregularities.

In May 2010, RTI activist Subash Chandra Agarwal sought this document along with the accompanying file notings from the department of telecom (DoT).

DoT sought the law ministry’s opinion on whether this information could be made public. The law ministry, through Vahanvati, took the view that this was information given in a fiduciary capacity—like between a lawyer and a client—and, therefore, exempt from being made public.

The law ministry sought exemption under section 8 (1) (e) of the RTI Act, which permits this for fiduciary relationships. However, the same section includes an exemption, which says that the information may be revealed if there is a larger public interest at stake.

CIC used this proviso to rule that the legal opinion should be made public. “Seeking refuge under section 8 (1) (e) will also not come to the rescue of the respondent ministry while denying disclosure of information under the RTI Act,” said information commissioner Sushma Singh in her order of 5 December. The commission also said that such a stance taken by the law ministry was “incorrect” and “untenable”.

 

This opinion has previously caused trouble for the UPA government. Swan was later charged by the Central Bureau of Investigation alongside Reliance Telecom for criminal conspiracy and corruption. Vahanvati’s opinion said that Swan did not require investigation by the corporate affairs ministry as reported in Mint on 3 March. He later denied issuing any opinions in this regard while appearing before the Supreme Court in the 2G spectrum case in March last year.

Another RTI revelation on the 2G spectrum scandal recently caused embarrassment for home minister P. Chidambaram, after finance ministry documents showed that he knew of Raja’s activities as they were happening. Chidambaram is being accused by opposition parties of allowing Raja to allegedly orchestrate what has become known as the 2G scam.

”The CIC’s decision is completely consistent with the RTI law, there is no personal fiduciary relationship between a minister in office and the law ministry,” Nikhil Dey, RTI activist and co-convener of the National Campaign for People’s Right to Information. “RTI will be used against decisions taken by the government, so any government which is in power has to face RTIs.”

Senior lawyer Anil Divan, however, voiced concern that the order might be jeopardizing the lawyer-client relationship thatexists between the departments of government and law officers.