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TEAM CODE : 1
FALI S. NARIMAN 1ST INTRA LAW FIRM MOOT COMPETITION 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

W.P. No. of 2023

Mr. SAJID KHAN …. PETITIONER

Vs.

STATE GOVERNMENT
REP. BY STATE INFORMATION COMMISSION …. RESPONDENT

ALONG WITH

S.L.P. No. of 2023

OFFICE OF THE PUBLIC PROSECUTOR …PETITIONER

Vs.

STATE GOVERNMENT
REP. BY STATE INFORMATION COMMISSION …. RESPONDENT

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TABLE OF CONTENTS

S.NO: PARTICULARS: PAGE NUMBER:

1 LIST OF 3
ABBREVIATIONS
2 INDEX OF AUTHORITIES 4-5

3 STATEMENT OF 6-7
JURISDICTION
4 STATEMENT OF FACTS 8-10

5 STATEMENT OF ISSUES 11

6 SUMMARY OF THE 12-13

ARGUMENTS
7 ARGUMENTS 14-27
ADVANCED
8 PRAYER 28

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LIST OF ABBREVIATIONS

SC SUPREME COURT

NGO NON-GOVERNMENT ORGANIZATION

HC HIGH COURT

PIL PUBLIC INTEREST LITIGATION

RTI RIGHT TO INFORMATION

SIC STATE INFORMATION COMMISSION

Art ARTICLE

CJ CHIEF JUSTICE

PP PUBLIC PROSECUTOR

AG ADVOCATE GENERAL

SCC SUPREME COURT CASES

CPIO CENTRAL PUBLIC INFORMATION

OFFICER
AIR ALL INDIA REPORTER

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INDEX OF AUTHORITIES

 CASES REFFERED:

1. Kunhayammed Vs. State of Kerala

- AIR 2000 SC 2587, 2595: (2000) 6 SCC 359
2. Pritam Singh Vs. The State
- AIR 1950 SC 169: SCR 453
3. Radha Krishna Industries Vs. State of H.P
- (2021) 6 SCC 771: 2021 SCC Online SC 334: AIR 2021 SC 2114: (2021) 88
GSTR 228 (SC)
4. Daryao Vs. State of Uttar Pradesh
- AIR 1961 SC 1457
5. Secretary of Advocate General vs. State Information Commission.
WP(C) NO. 7240 OF 2013
6. Joginder Singh Wasu’s
1944 SCC (1) 184, JT 1993 (6) 259
7. Kunjukrishnan Nair’s Case
AIR 1989 KER 253
8. State Of U.P And Others Vs. U.P. State Law Officers Association and Others -
[1994 (2) SCC 204]
9. Reserve Bank of India v. Jayantilal Mistry
- 2016 3 SCC 525
10. Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another
- (2012) 13 SCC 61
11. State of Bihar v. Kameshwar Singh
-AIR 1952 SC 252

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 STATUTES REFFERED:

1. Constitution of India of 1949

2. Indian Evidence Act, 1872
3. Right to Information Act, 2005
4. Contempt of Court’s Act,1970

 BOOKS REFFERED:

1. Introduction to the Constitution of India

AUTHOR: Durga Das Basu
2. The Right to Information Act 2005 –
AUTHOR: K. Krishnakumar
3. Indian Constitutional Law
AUTHOR: M.P.Jain, Fifth edition, 2008 pg.4154

 WEBSITES REFFERED:

1. https://www.scconline.com/
2. https://Indiankanoon.org/
3. https://www.casemine.com/
4. https://www.livelaw.in/

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STATEMENT OF JURISDICTION

THE PETITIONER HAS INVOKED THE JURISDICTION OF THIS HON’BLE

SUPREME COURT OF INDIA IN THIS MATTER,

ARTICLE 32 OF THE CONSTITUTION OF INDIA:

Remedies for enforcement of rights conferred by this Part:

1. The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed

2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part

3. Without prejudice to the powers conferred on the Supreme Court by clause (1)
and (2), Parliament may by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause ( 2 )

4. The right guaranteed by this article shall not be suspended except as

otherwise provided for by this Constitution.

ALONG WITH

ARTICLE 136 OF THE CONSTITUTION OF INDIA 1949:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India

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(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

The Writ Petition is not maintainable under Article 32 of the Constitution of India as
there has been no violation of the fundamental right of the Petitioner.

The Special Leave Petition also is not maintainable as there is no substantial question of law
arising in the present dispute invoking the jurisdiction.

THE RESPONDENT HUMBLY CONTENDS TO THIS JURISDICTION

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STATEMENT OF FACTS

INTRODUCTION:

State of Mangalsthan is one of the newest state in India, it has a population of over 2.71
crores. Over 20% of the population is below poverty line, and above 35% is unemployed. The
state has a crime rate that is rated third highest in India by n NGO called Human rights watch
for the year 2022 and the leaders of the are considered corrupt. Chandraprastha, which is the
seat of high court of Mangalasthan, is the capital city of the Mangalsthan for the past 2 years.

DEVELOPMENT OF SANGAPURA:

Being a capital city, Chandraprastha saw heavy influx of people from other towns in search of
employment. Therefore, the State Government established a satellite city in Sangapura. They
called for tenders from infrastructure companies for the development of the satellite city for
the Rupees 40,000 Crores. They considered only big infrastructure companies. Their tender
was won by the consortium company. An Agreement dated 14.02.2021 was entered between
State Government and the Consortium and they were permitted to enter into new agreements
with various private parties. Subsequently, there was few PIL’s in the High Court of
Mangalsthan, wherein the decision of the State Government was challenged.

Mr. SAJID KHAN- A SOCIAL ACTIVIST:

Mr. Sajid khan who was a social activist filed a Right to Information (herein referred as RTI)
application to the State Government regarding the Sangapura Project. They furnished most of
the documents but withheld the key documents, which included intelligence reports, and the
Advocate General’s opinion (herein after referred as AG). Mr. Sajid Khan then wrote back to
the State Government requesting for the above documents. The concerned appellate authority
disposed the appeal by order on 10.04.2021 stating that the information cannot be granted.

Aggrieved by the same, Mr. Sajid Khan filed a writ petition in the Mangalsthan High court
challenging the rejection of the information by the State Government and the same was
dismissed by the High court by order dated 10.06.2021 stating that the petitioner has not
availed the alternate remedy under the statute. Further observing that the opinion of The AG
cannot be disclosed. Therefore, Mr. Sajid Khan filed an appeal before the state information
commission (Herein referred as SIC) which disposed the appeal. Meanwhile the PIL was
heard by the High

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Court and dismissed stating that there was no arbitrariness. The petitioners under the PIL
thought that the judgement is not fit for appeal.

MOHINI DEVI DOUBLE MURDER CASE:

Mohini devi was one of the leading actress in the Mangala Film Industry and was in a
relationship with her Co-Star Subash Kapoor, another popular actor in the district. They were
known to enjoy in a good relationship and they broke up due to a misunderstanding. Just a
couple of days later, Mohini devi and her mother were found brutally murdered in their
house. Mr. Subash Kapoor expressed his grief, the police on investigation found him to be
responsible for the murder and arrested. In the trial court, he was convicted for the offence of
murder and sentenced for life imprisonment. However, on appeal, the high court has held
that, there is no sufficient evidence available to convict Mr. Subash Kapoor and acquitted
him. Aggrieved by this, Mr. Rajkumar, the brother of the deceased Ms. Mohini devi who was
also the complainant filed the RTI applications to the public prosecutor office seeking all
documents including the opinion of public prosecutor and whether the matter is fit for appeal
or not. The office of the public prosecutor denied the application citing the exemption under
sec 8 of the RTI application concerned appellate authority under the RTI act dismissed the
appeal. Aggrieved by the same, Mr. Rajkumar filed an appeal before the Mangalsthan SIC,
which issued notice to the office of the public prosecutor asking to show cause as to why the
requested information has not been given and to furnish the requested documents within 30
days. The office of the public prosecutor promptly filed a writ petition before the High Court
of Mangalsthan challenging the Notice of the Information Commission. The Single Judge
after hearing both the counsels passed an order dated 10.06.2021, the same cannot be
disclosed as it is exempted under section 8 of the RTI Act and the writ petition was allowed.
Aggrieved by the same, Mr. Rajkumar filed a writ appeal, where the matter was heard again.
The Division Bench of Mangalsthan High Court, noting this, the matter has not been heard
yet by the SIC which was the authority to decide and set aside the order of the Single Judge
and remanded the matter to be heard by the SIC by order dated 10.09.2022.

The office of PP, however was aggrieved by the order of the Division Bench and hence filed
SLP contending that, the SIC has no jurisdiction to disclose a matter before Mangalsthan
High Court, SIC will not be in a position to decide the matter in a fair manner. Further,
contended that disclosing information in a criminal case would prejudice the investigation
hence such disclosure would not sync with Art 21 of the Constitution. The Hon’ble SC,
found that the

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entire issue to be centered around the disclosure of PP’s opinion ordered on 11.12.2022, the
SIC can hear and admitted the SLP on that portion alone.

SANGAPURA SCAM:

There were major irregularities in allotment of the project to the Consortium and it was
revealed in the newspapers, that the Consortium through various holdings and sham
Companies was actually held by the members of the ruling party. Senior minister of the
ruling party gave a press statement denying the same. Mr. Sajid Khan meanwhile through his
sources learnt that the AG of the state had advised the Government against the said move of
allotting the project to one developer.

TURN OF EVENTS:

Mr. Sajid Khan, knowing that a similar issue is pending in the Supreme court filed a writ
petition under article 32 challenging the order of the State Government and the SIC over non
disclosing the opinions of the AG as violation of fundamental rights as said in part III of the
constitution. The state of Mangalsthan contended that the writ petition itself is not
maintainable by Res Judicata. The Supreme court however noting the importance of the issue
and admitted the writ petition keeping the question of maintainability open and posted the
matter before the Chief Justice to tag with the previous similar matter and posted it before the
bench of three judges on 03.09.2023.

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STATEMENT OF ISSUES

1. Whether the state information commission has jurisdiction to issue notice calling
the public prosecutor to show cause the records?

2. Whether the Writ Petition is maintainable?

3. Whether the relationship between the Advocate General of the State Government is a
fiduciary relationship?

4. Why the information sought for cannot be furnished to avoid any erosion in the
credibility of the decisions and to ensure a free and frank expression of opinion by the
Advocate General, which is essential for effective consultation and for taking the right
decision?

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SUMMARY OF ARGUMENTS

1. Whether the state information commission has jurisdiction to issue notice

calling the public prosecutor to show cause the records?

The Counsel for The Respondent humbly submits that the state information commission has
jurisdiction to issue notice calling the public prosecutor to show cause the records under the
RTI act, 2005 under section 18 (1) (f) of the RTI act stating the powers and functions of the
information commission to invoke a jurisdiction where the information commission can be
received and enquire the complaint received from a person in respect of any other matter
relating to requesting or obtaining access to records under this act.

2. Whether the Writ Petition is maintainable?

The Counsel for The Respondent humbly submits that the petition filed by the petitioner
under article 32 is not maintainable by the very principles proposed by the High court of
Mangalsthan in the same subject matter; wherein which the petitioner has approached the
high court through writ jurisdiction, for one person approaching a court by invoking writ
jurisdiction should have exhausted all the remedies that are available to him. In the writ
petition filed in theHigh court of Mangalsthan, the High court has opined that the writ
petitioner has not exhausted all his remedies available in the statute.

3. Whether the relationship between the Advocate General of the State

Government is a fiduciary relationship?

The Counsel for The Respondent humbly submits that the relationship that is existing
between the Advocate General of the State Government and whether the State Government is
a fiduciary relationship in the terms, that the State Government is determined to be a client of
such advocate appointed by them to legally act and guide through them for the State
Government.

As per section 126 of the Indian Evidence Act, the communication held between a client and
the advocate is deemed to be confidential and not shall not be disclosed with any other person
without the express permission of the client.

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4. Whether the information sought by the Petitioner can be given?

The Counsel for The Respondent humbly submits that the, information sought by the writ
petitioner cannot be furnished to avoid any erosion in the credibility of the decisions and to
ensure a free and frank expression of opinion by the Advocate general, which is essential for
effective consultation and for taking the right decision for the State Government. The opinion
given by the Advocate General cannot be furnished to the writ petitioner to ensure a
confidential and good functioning of the government.

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ARGUMENTS ADVANCED

1. Whether the state information commission has jurisdiction to issue notice calling
the public prosecutor to show cause the records?

The counsel for the respondent humbly submits that the state information commission has
jurisdiction to issue notice calling the public prosecutor to show cause the records under the
RTI act, 2005 under section 18 (1) (f) of the RTI act stating the powers and functions of the
information commission to invoke a jurisdiction where the information commission can be
received and enquire the complaint received from a person in respect of any other matter
relating to requesting or obtaining access to records under this act.

The counsel for the respondent states that the state information commission has a jurisdiction
to adjudge any matter that it is within their statutory power and the special leave petitioner
contesting the jurisdiction of the commission. The section 18 (1) (f) of the RTI Act, 2005 are
as follows;

Section 18 in The Right to Information Act, 2005:

18. Powers and functions of Information Commission. —

(1) Subject to the provisions of this Act, it shall be the duty of the Central Information
Commission or State Information Commission as the case may be to receive and inquire into
a complaint from any person, —

(a) who has been unable to submit a request to a Central Public Information Officer, or State
Public Information Officer as the case may be, either by reason that no such officer has been
appointed under this Act, or because the Central Assistant Public Information Officer or State
Assistant Public Information Officer, as the case may be, has refused to accept his or her
application for information or appeal under this Act for forwarding the same to the Central
Public Information Officer or State Public Information Officer or Senior Officer specified in
sub-section (1) of section 19 or the Central Information Commission or the State Information
Commission, as the case may be;

(b) who has been refused access to any information requested under this Act;

(c) who has not been given a response to a request for information or access to information
within the time limits specified under this Act;

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(d) who has been required to pay an amount of fee which he or she considers unreasonable;

(e) who believes that he or she has been given incomplete, misleading or false information
under this Act; and

(f) in respect of any other matter relating to requesting or obtaining access to records under
this Act.

The above referred statute gives the power to the information commission to adjudicate any
form of appeal which has been initiated before it. The state information commission has a
power to call for the petitioner in the SLP to state the reasons for not furnishing the disputed
information. The disputed information which was in question is the opinion of the public
prosecutor in a murder case which would be further decided by the appellate authority and
not the Supreme court of India. The article 136 of the Indian constitution which was invoked
by the special leave petitioner as follows;

Article 136 in The Constitution Of India 1949:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces

In the above-mentioned statute invoking of jurisdiction of the Supreme court under the article
136 can be invoked only when there is a question of law is invoked in the subject matter. In
the case of Kunhayammed Vs. State of Kerala1, the court held that,

“It is not the policy of this court to entertain special leave petitions and grant leave under
Article 136 of the Constitution, save in those cases where some substantial question of law of
general or public importance is involved or there is manifest injustice resulting from the
impugned order or judgement”

In the view of the above-mentioned case, question of law is interpreted by the Supreme court
of India has laid down an observation of “the disclosure of the opinion of the public
prosecutor”

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1
Kunhayammed Vs. State of Kerala AIR 2000 SC 2587, 2595: (2000) 6 SCC 359

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stating to involve a substantial question of law. But to invoke this jurisdiction of the court, the
petitioner should have shown an existence of exceptional and special circumstances existing
in the subject matter.

In the case of Pritam Singh Vs. The State2, it is held that;

“Generally speaking, this court will not grant special leave, unless it is shown that exceptional
and special circumstances exist, that substantial and grave injustice has been done and that
the case in question presents failures of sufficient gravity to warrant a review of the decision
appealed against”.

Wherein, In the case of public prosecutor, the grave injustice was not happened merely by
calling the public prosecutor to show the records to the commission.

Further, the counsel for the Respondent humbly submits that the mere issuance of notice to
call for records does not constitute a criminal contempt as stated under section 2 of the
Contempt of Courts Act, 1970 states as follows;

 Definitions.—In this Act, unless the context otherwise requires,—

(a) “contempt of court” means civil contempt or criminal contempt;
(b) “civil contempt” means wilful disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful breach of an undertaking given to a
court;
(c) “criminal contempt” means the publication (whether by words, spoken or written,
or by signs, or by visible representations, or otherwise) of any matter or the doing of
any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any
court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;

2
Pritam Singh Vs. The State AIR 1950 SC 169: SCR 453

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Further the exemption under section 5 of the said act states as follows;
 Fair criticism of judicial act not contempt. —A person shall not be guilty of contempt
of court for publishing any fair comment on the merits of any case which has been
heard and finally decided.

The above referred section clearly exempts any fair criticism of the judicial act; which widely
implies that without any criticisms over the act of the Judiciary, a proper justice cannot be
addressed.

With the above submissions made, the counsel for the respondent state that the state
information commission has jurisdiction to issue notice to the petitioner.

2. Whether the Writ Petition is maintainable?

The counsel for the respondent humbly submits that the petition filed by the petitioner under
article 32 is not maintainable by the very much principles proposed by the High court of
Mangalsthan in the same subject matter; wherein which the petitioner has approached the
high court through writ jurisdiction, for one person approaching a court by invoking writ
jurisdiction should have exhausted all the remedies that are available to him. In the writ
petition filed in the high court of Mangalsthan, the High court has opined that the writ
petitioner has not exhausted all his remedies available in the statute.

In a case cited – Radha Krishnan Industries Vs. State Of H.P.3

Maintainability of Writ Petition- Alternative Remedy/ Exhaustion of remedies- Art 226 –
General Principles:
The principles of law which emerge are that:
a) The power under article 226 of the Constitution to issue writs can be exercised not
only for the enforcement of fundamental rights but for any other purpose as well,
b) The High Court has the discretion not to entertain a writ petition. One of the
restrictions placed on the power of the High Court is where an effective alternate
remedy is available to the aggrieved person.

3
Radha Krishnan industries vs. State of H.P. (2021) 6 SCC 771: 2021 SCC Online SC 334: AIR 2021 SC
2114: (2021) 88 GSTR 228 (SC)

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c) Exceptions to the rule of alternate remedy arise where 1. The writ petition had been
filed for the enforcement of a fundamental right protected by Part III of the
Constitution
2. There has been a violation of the principles of natural justice 3. The order or
proceedings are wholly without jurisdiction or 4. The vires of a legislation is
challenged.
d) An alternate remedy by itself does not divest the High Court of its powers under Art
226 of the Constitution in an appropriate case through ordinarily, a writ petition
should not be entertained when an efficacious alternate remedy is provided by law.
e) When a right is created by a statute, which itself prescribes the remedy or procedure
for enforcing the right or liability, resort must be had to that particular statutory
remedy before invoking the discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory remedies is a rule of policy,
convenience and discretion.
f) In cases where there are disputed questions of fact, the High court may decide to
decline jurisdiction in a writ petition. However, if the High court is objectively of the
view that the nature of the controversy requires the exercise of its writ jurisdiction,
such a view would not really be interfered with.

In the above-mentioned case, the High court has also held that, it is the discretion of the court
to ensure that when there is an alternative effective remedy available under the prescribed
statute under section 19 of the Right to information act, 2005 for reaching the doors of the
central public information commission for the order passed by the state information
commission within thirty days of the said order, it must be effectively be used before
approaching this court of law.

Section 19 of The Right to Information Act, 2005:

1. Any person who, does not receive a decision within the time specified in sub-section
(1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the
Central Public Information Officer or the State Public Information Officer, as the case
may be, may within thirty days from the expiry of such period or from the receipt of
such a decision prefer an appeal to such officer who is senior in rank to the Central
Public Information Officer or the State Public Information Officer, as the case may
be, in each public authority: Provided that such officer may admit the appeal after
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the

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expiry of the period of thirty days if he or she is satisfied that the appellant was
prevented by sufficient cause from filing the appeal in time.
2. Where an appeal is preferred against an order made by a Central Public Information
Officer or a State Public Information Officer, as the case may be, under section 11 to
disclose third party information, the appeal by the concerned third party shall be made
within thirty days from the date of the order.
3. A second appeal against the decision under sub-section (1) shall lie within ninety days
from the date on which the decision should have been made or was actually received,
with the Central Information Commission or the State Information Commission:
Provided that the Central Information Commission or the State Information
Commission, as the case may be, may admit the appeal after the expiry of the period
of ninety days if it is satisfied that the appellant was prevented by sufficient cause
from filing the appeal in time.
4. If the decision of the Central Public Information Officer or State Public Information
Officer, as the case may be, against which an appeal is preferred relates to information
of a third party, the Central Information Commission or State Information
Commission, as the case may be shall give a reasonable opportunity of being heard to
that third party.
5. In any appeal proceedings, the onus to prove that a denial of a request was justified
shall be on the Central Public Information Officer or State Public Information Officer,
as the case may be, who denied the request.
6. An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty
days of the receipt of the appeal or within such extended period not exceeding a total
of forty-five days from the date of filing thereof, as the case may be, for reasons to be
recorded in writing.
7. The decision of the Central Information Commission or State Information
Commission, as the case may be, shall be binding.
8. In its decision, the Central Information Commission or State Information
Commission, as the case may be, has the power to:

(a) require the public authority to take any such steps as may be necessary to secure
compliance with the provisions of this Act, including –

(i) by providing access to information, if so requested, in a particular form;

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(ii) by appointing a Central Public Information Officer or State Public Information Officer, as
the case may be;
(iii) by publishing certain information or categories of information;
(iv) by making necessary changes to its practices in relation to the maintenance, management
and destruction of records;
(v) by enhancing the provision of training on the right to information for its officials;
(vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of
section 4;
(b) require the public authority to compensate the complainant for any loss or other detriment
suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application.

9. The Central Information Commission or State Information Commission, as the case

may be, shall give notice of its decision, including any right of appeal, to the
complainant and the public authority.
10. The Central Information Commission or State Information Commission, as the case
may be, shall decide the appeal in accordance with such procedure as may be
prescribed.

Further, the counsel for the respondent humbly submits that the writ petition itself is barred
by the principle of res judicata. Wherein the principle of res-judicata clearly states that when
there is a case instituted for same cause of action more than one adjudicating forum, the cases
are barred by this principle. In this case, the writ petitioner had not approached this Supreme
court through an appeal over the judgement passed by the High court of Mangalsthan.
Wherein the writ petitioner again invoked the same writ jurisdiction for the same cause of
action. Further, the information sought for by the writ petitioner is an exempted information
and does not deal with any of the larger public interest, a vague interest of one person in a
subject matter does not pave way for a larger public interest.

Res Judicata in Writ Petitions:

The rule of res judicata envisages that finality should attach to the binding decisions
pronounced by courts of competent jurisdiction so that individuals are not made to face the

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same litigation twice. It is basically a rule of private law but has been transposed into the area
of writ proceedings as well.

The principal of res judicata has been applied by the Supreme court to determine the mutual
relationship under Art 32 and 226. Disposal of a writ petition under Art 226 by High court on
merits, bars a subsequent petition for a writ under Art 32, in a case citied, Daryao Vs. State
of Uttar Pradesh4, or even a regular suit between the same parties for the same cause of
action, because of the res judicata5.

Further, the counsel for the respondent humbly submits that the seeking of an exempted
information under the said act and the refusal of the same by the concerned authority is not an
infringement of the fundamental right of the petitioner. The fundamental rights of the
constitution are enacted in a way that a fundamental right of a person is attracted to be availed
in consonance of the executive power of the state. The Advocate General deemed to be one of
a constitutional functionary in a branch of executive powers of the state prescribed to give
opinions on matters of the state business; such opinion of the Advocate General is deemed to
be a confidential communication of the Advocate General to the State Government and is not
an information as provided under the Right to information act evolved through the Article
19(1)(a) of the Indian constitution.

Article 19(1)(a) of the Constitution of India:

All citizens shall have the right to:
a) to freedom of speech and expression.

The counsel for the Respondent humbly submits that, the writ petition is not maintainable in
the purview of alternate remedy.

3. Whether the relationship between the Advocate General of the State Government
is a fiduciary relationship?

The counsel for the respondent humbly submits that the relationship between the Advocate
General and the State Government is that of an attorney client relationship and any

4
Daryao Vs. State of U.P.,AIR 1961 SC 1457
5
Indian Constitutional Law, Authored by M.P.Jain, Fifth edition, 2008 pg.4154

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communication made between them is governed under the section 126 of the Indian evidence
act which states as follows:

Section126:

Professional communications.—No barrister, attorney, pleader or vakil shall at any time be

permitted, unless with his client’s express consent, to disclose any communication made to
him in the course and for the purpose of his employment as such barrister, pleader, attorney
or vakil, by or on behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the course and for the
purpose of such employment: Provided that nothing in this section shall protect from
disclosure -

(1) Any such communication made in furtherance of any 1[illegal] purpose; 2[illegal]
purpose;”

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment. It is immaterial whether the attention of such barrister,
attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation-The obligation stated in this section continues after the employment has ceased

Any communication that has been made in a professional relationship comes under the
definition of the statute provided above. The petitioner in the writ petition seeks the
information that has been made between an advocate and the client (i.e., the State
Government) in a legal direction. Which is an exempted information as per section 8(1) (e) of
the Right to information act 2005 reads as follows:

Section 8. Exemption from disclosure of information-

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any
citizen,

e) Information available to a person in his fiduciary relationship, unless the competent

authority is satisfied that the larger public interest warrants the disclosure of such
information;

Further, the State Government deemed to be considered as a client of the advocate general,
even though the Advocate General of the state is a constitutional functionary, the relationship
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that was existed between them is a fiduciary relationship and will be governed by the
universal principle of attorney client privilege

Though the Attorney General holds a public office, there is an element of lawyer-client
relationship between the Union Government and the Attorney General.

And also supported by the discussions made by the apex court in a case of Secretary of
Advocate General vs. State Information Commission.6

In Joginder Singh Wasu Vs.State of Punjab 7(supra) the Apex Court Observed that the
relationship between the Advocate General and the State Government is essentially that of an
Advocate and a client in Relation to his appearance in court and arguing the case before the
court on behalf of the State.

In Kunjukrishnan Nair Vs. State of Kerala & Ors 8(supra), this Court Observed that the
relationship between the Government law officer and The Government is essentially that of a
lawyer and a litigant.

In State Of U.P And Others Vs. U.P. State Law Officers Association and Others [1994
(2) SCC 204]9, the Apex Court observed that the legal profession Is essentially a service-
oriented profession. It will be better to extract:

Paragraphs 14 and 15 of the above decision:

“14. Legal profession is essentially a service-oriented profession. The, Ancestor of today’s

lawyer was no more than a representative who rendered his services to the needy members of
the society by articulating their case before the authorities that be. The services were rendered
without regard to the remuneration received or to be received. With the growth of litigation,
Lawyering became a full-time occupation and most of the lawyers came to depend upon it as
the sole source of livelihood. The nature of the service rendered by the lawyers was private
until the Government and the public Bodies started engaging them to conduct cases on their

6
Secretary of Advocate General vs. State Information Commission
7
Joginder Singh Wasu Vs.State of Punjab 1994 SCC (1) 184, JT 1993 (6) 259
8
Kunjukrishnan Nair Vs. State of Kerala & Ors. AIR 1989 Ker 253
9
State Of U.P And Others Vs. U.P. State Law Officers Association and Others [1994 (2) SCC
204

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behalf. The Government and the public bodies engaged the services of the lawyers purely on
a contractual basis either for a specified case or for a specified or an unspecified period.
Although the contract in some cases prohibited the lawyers from accepting private briefs, the
nature of the contract did not alter from one of professional engagement to that of
employment. The Lawyer of the Government or a public body was not its employee but was a
professional practitioner engaged to do the specified work. This is so even today, though the
lawyers on the full time rolls of the Government and the public bodies are described as their
law officers. It is precisely for this Reason that in the case of such law officers, the saving
clause of R.49 of the Bar Council of India Rules, waives the prohibition imposed by the said
rule against the acceptance by a lawyer of a full-time employment.

15. The relationship between the lawyer and his client is one with trust and confidence. The
client engages a lawyer for personal reasons and is at liberty to leave him also, for the same
reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer.
The lawyer, in turn, is not an agent of his client but his dignified, responsible representative.
He is not bound to tell the court every fact or urge every proposition of law, which his client
wants him to do, however irrelevant it may be. He is essentially an Advisor to his client and is
rightfully called a counsel in some jurisdictions. Once acquainted with the facts of the case, it
is the lawyer’s discretion to choose the facts and the points of law which he would advance.
Being a responsible officer of the court and an important adjunct of the administration of
justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be
fair to ensure that justice is done. He Demeans himself if he acts merely as a mouthpiece of
his client. This Relationship between the lawyer and the private client is equally valid
between him and the public bodies.”

From the above discussions, it is clear that the relationship between the Advocate General
and the Government is a lawyer-client relationship.

As Per Article 165 (2) of the Constitution of India, it is the duty of the Advocate General to
give advice to the Government of the State upon such legal matters, and to perform such other
duties of a legal character, as may from time to time be referred or assigned to him by the
Governor, and he has to discharge the functions conferred on him by or under the
Constitution or any other law for the time being in force. The Advocate General may give
legal opinion to the Government on various issues. Some issues may be sensitive, some issues

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may be political,

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some issues may be religious, some issues may be about the functioning of the Government
and some issues may be about the constitutional validity of certain proposed enactments.

Relying on Reserve Bank of India v. Jayantilal Mistry (2016 3 SCC 525)10, he says there
are four parameters for generally assessing whether a relationship is fiduciary in nature:

a. faithful integrity
b. control and responsibility,
c. duty to act or advise, or
d. traditionally recognised as involving fiduciary duties, as with a lawyer and a
client’ (para. 33).

He concludes that the Chief Justice is ordinarily not in a fiduciary relationship with other
judges. However, he asserts that this must be tested on a case-by-case basis using the above
parameters. He clarifies that relationship may be partly fiduciary and partly non-fiduciary and
that whether information disclosure is appropriate must depend on the context from the
observations made by the apex court, it is clear to state that the relationship between the
Advocate General of the State Government and the state is that of an attorney client
relationship and which will be governed by the principle of attorney client privilege.

4. Why the information sought for cannot be furnished to avoid any erosion in the
credibility of the decisions and to ensure a free and frank expression of opinion
by the Advocate General, which is essential for effective consultation and for
taking the right decision?

The Counsel for the Respondent humbly submits that the, information sought by the writ
petitioner cannot be furnished to avoid any erosion in the credibility of the decisions and to
ensure a free and frank expression of opinion by the Advocate general, which is essential for
effective consultation and for taking the right decision for the State Government. The opinion
given by the Advocate General cannot be furnished to the writ petitioner to ensure a
confidential and good functioning of the government. The opinion of the Advocate General
does not invoke a larger amount of public interest.

10
Reserve Bank of India v. Jayantilal Mistry (2016 3 SCC 525

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The counsel for the respondent submits that in a case of Bihar Public Service Commission
v. Saiyed Hussain Abbas Rizwi and Another11, to dilute the term of larger public interest,
the Supreme court held that;

The expression ‘public interest’ has to be understood in its true connotation so as to give
complete meaning to the relevant provisions of the Act. The expression ‘public interest’ must
be viewed in its strict sense with all its exceptions so as to justify denial of a statutory
exemption in terms of the Act. In its common parlance, the expression ‘public interest’, like
‘public purpose’, is not capable of any precise definition. It does not have a rigid meaning, is
elastic and takes its colour from the statute in which it occurs, the concept varying with time
and state of society and its needs.

In the case of State of Bihar v. Kameshwar Singh 12. It also means the general welfare of
the public that warrants recommendation and protection; something in which the public as a
whole has a stake [Black’s Law Dictionary (Eighth Edition)].

24. The satisfaction has to be arrived at by the authorities objectively and the consequences of
such disclosure have to be weighed with regard to circumstances of a given case. The
decision has to be based on objective satisfaction recorded for ensuring that larger public
interest outweighs unwarranted invasion of privacy or other factors stated in the provision.
Certain matters, particularly in relation to appointment, are required to be dealt with great
confidentiality. The information may come to knowledge of the authority as a result of
disclosure by others who give that information in confidence and with complete faith,
integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it
within the ambit of fiduciary capacity. Similarly, there may be cases where the disclosure has
no relationship to any public activity or interest or it may even cause unwarranted invasion of
privacy of the individual. All these protections have to be given their due implementation as
they spring from statutory exemptions. It is not a decision simpliciter between private interest
and public interest. It is a matter where a constitutional protection is available to a person
with regard to the right to privacy. Thus, the public interest has to be construed while keeping
in mind the balance factor between right to privacy and right to information with the purpose
sought to be achieved

11
Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another, (2012) 13 SCC 61

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12
State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)]

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and the purpose that would be served in the larger public interest, particularly when both
these rights emerge from the constitutional values under the Constitution of India.

The Larger public interest is reiterated in the case mentioned supra in which the court held
that when a right to seek information is a fundamental right of the writ petitioner; which
invariably violates the right to privacy of the Advocate General which involves the opinion of
the same constitutional functionary. In the same case, it was held that;

The term ‘fiduciary’ refers to a person having a duty to act for the benefit of another, showing
good faith and contour, where such other person reposes trust and special confidence in the
person owing or discharging the duty. The term ‘fiduciary relationship’ is used to describe a
situation or transaction where one person places complete confidence in another person in
regard to his affairs, business or transactions.

Any information given within the fiduciary relationship of a person is an information dealt
within a confidential manner between such persons. In the course of considering the
requirement of larger public interest, it is vest with the competent authority constituted under
the act. The appeals preferred by the writ petitioner was disposed by considering the elements
discussed above in both the state information commission and the High Court of
Mangalsthan. It is the right of an Advocate General to act on his legal duties of giving
opinions on legal matters of the state and in event of disclosing of such information warrants
the non-credibility of the opinion entrusted to the state by the Advocate general. The counsel
for the respondent humbly submits that the disclosing of such information in the fiduciary
relationship would warrant a violation of the duty of the Advocate General who deems to be
the constitutional functionary.

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PRAYER

The Counsel for the Respondent most humbly prays before this Hon’ble Supreme
court that Wherefore, in the light of the issues raised, arguments advanced, reasons
given and authorities cited, it is most humbly prayed before this Hon’ble Supreme
Court, that it may be pleased to adjudge and:

i. To dismiss the Writ Petition

ii. To consider the fiduciary relationship between the Advocate General and the
State Government
iii. To dismiss the Special Leave Petition considering that it is not maintainable
before this Hon’ble court and that the disclosure of the Public Prosecutor does
in opinion does not involve the constitutional importance.

AND/OR

Pass any other order or relief it may deem fit and proper, in the interest of Justice,
Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

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