Wednesday, January 6, 2010

PPs need not divulge State information: HC

Public Prosecutors need not divulge State information: HC

Express News Service

06 Jan 2010 03:31:00 AM IST

CHENNAI: Eventhough Public Prosecutors (PPs) are public authorities, they are basically advocates and they need not divulge privileged information relating to their client -- i.e. the State -- under the Right to Information (RTI) Act, the Madras High Court has observed.

Justice K Chandru made the observation while allowing a writ petition from the office of the Public Prosecutor attached to the Madras High Court challenging an order dated October 22, 2008 and the subsequent summons issued on September 10, 2009 of the Registrar of the Tamil Nadu State Information Commission requiring the PP to appear before it with necessary documents.

By an application dated July 7, 2008 to the Additional PP, who was designated as the Information Officer, one M Sivaraj sought information relating to an FIR registered by the Dharmapuri town police in an incident on February 22, 2008 and the photocopies of the documents relating to the case. The APP rejected the plea. Sivaraj moved the State Information Commission, which directed the APP to furnish the information and later issued the summons.

Hence the present petition from the office of the PP.

Allowing the petition and quashing the summons, Justice Chandru observed that the PPs were indeed public authorities under Section 2(h) of the RTI Act. However, as enjoined by the Advocates Act, they were also advocates as much as other advocates. The Bar Council of India had framed rules under Section 49(1)(c) of the Advocates Act prescribing the professional conduct and etiquette. Section II prescribed an advocate's duty to his client.

Therefore, the petitioner (PP) was perfectly right in contending that the information sought for by Sivaraj was a privileged communication and he could not disclose them without the express consent of the client -- the State. The information sought by Sivaraj was completely privileged and disclosure of the same was barred by Section 126 of the Indian Evidence Act.

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.

A careful reading of Section 126 of the Evidence Act as well as the standards of professional conduct framed under Section 49(1)(c) of the Advocates Act would clearly show that it was not as if the information could not be asked from the government directly rather than asking the PP to divulge the nature of the advice tendered by him.

Since there was a statutory bar against the counsel (PP) from disclosing such information, which would result in civil consequences for the counsel, Section 8(2) of the RTI Act could not be read in isolation so as to jettison the obligation of an advocate from disclosing the information, which were privileged and barred by statutes, the judge said.


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The RTI Act was passed by the Lok Sabha (Lower House) on 11 May 2005, by the Raj Sabha (Upper House) on 12 May 2005 and received Presidential assent on 15 June 2005. Parts of the Act came into force upon Presidential assent, but the Act came fully into force on 12 October 2005, 120 days after Presidential assent.

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