Public institutions seek the right to secrecy…….Maitreyee Handique
Several organizations seek to dodge landmark RTI Act, particularly in cases where private partners are involved
Several organizations seek to dodge landmark RTI Act, particularly in cases where private partners are involved
Several public-private partnership (PPP) ventures involved in building Indias airports and power projects have come under the central information commissioners scanner for refusing to go public on details of operations as litigation piles up in higher courts to decide whether they come under the countrys transparency law.
The list of entities seeking exemption from the Right to Information (RTI) Act also includes the countrys top two stock exchanges, sundry export promotion councils, several cooperative societies and even cultural institutions and sports federations that come under the aegis of the government.
The bone of contention is whether associations and public-private companies accepting public resources can escape the law, as the Central Information Commission (CIC) seeks to find a way out of the legal bind.
Last month, chief central information commissioner Satyananda Mishra wrote to Planning Commission deputy chairman Montek Singh Ahluwalia to reaffirm that all PPPs, by definition, are public authorities, and, by that reckoning, should willingly subject themselves to the RTI Act.
Inserting a disclosure clause in the model concession agreement for PPPs will reduce future conflict, Mishra told Mint.
Substantial confusion
At the root of the debate is a provision in the RTI Act, which states that any substantial contribution of public funds in any authority set up under the constitution, Parliament or by government order will be deemed a public authority, making it answerable to public queries. How much is substantial is open to interpretation, and thus, litigation.
Partnership ventures between the private sector and the government such as Delhi International Airport Pvt. Ltd, a consortium led by the GMR Group, and Bangalore International Airport Ltd, a joint venture between the Karnataka State Small Scale Industries Development Corp. Ltd, Airports Authority of India and private operators, have moved court challenging CICs decision on being deemed public authorities.
So has Tata-backed power distribution company North Delhi Power Ltd and BSES Rajdhani Power Ltd, a partnership between Reliance Energy Ltd and the Delhi government.
Both the Bombay Stock Exchange and the National Stock Exchange (NSE) have rejected the central information commissioners order for disclosure, and are involved in cases before the Bombay and Delhi high courts, respectively.
Some of these cases have been languishing in courts for more than a year and their number is rising: Out of 900 CIC cases currently in courts, some 200 involve the issue of public authority.
Only last week, CIC directed Delhis health department to disclose all its public-private projects, including its ambulance service venture with Fortis Emergency Service; the former pleaded its inability to provide the information on grounds that the issue is under litigation and may harm its interest.
The RTI Act was implemented less than six years ago, but enforcing the culture of openness in certain quarters of the government has been an uphill task. Experts say transformation can only come about over time when adherence to laws and pinning down responsibilities of those at the helm of affairs improves.
We have a defective democracy. We do not respect individual citizens, said Shailesh Gandhi, one of CICs information commissioners. Everyone wants to be out of RTI.
Yet, there are others who have embraced RTI as part of the normal course of law. Its also gaining acceptance in new policies being drafted. For example, the environment ministry has made RTI mandatory in redevelopment efforts in its coastal regulatory zone Bill.
We get funds from the public exchequer and, therefore, are open to RTIs, said Vijay Thakur, president of the Indian Floor Covering Exporters Association, which falls under the textile ministry.
Embedded secrecy
Still, the culture of secrecy is deeply embedded in the government system where public resources collide with private business. The Apparel Export Promotion Council (AEPC), for example, is under the textile ministry, but is seeking exemption.
While AEPC, which has more than 6,000 members and four government nominees on its board, receives funding from commerce ministry schemes such as the Marketing Development Assistance and Market Access Initiative, it maintains that its answerable only to its members.
According to two of its executives, AEPC receives funding of between Rs.80,000 and Rs.5,00,000 per participant in international garment fairs. The government has already funded air fare expenditures and fair booth costs for 425 participants up to January in the current financial year.
We have left it to the court to decide and wait, said AEPC chairman Premal Udani.
The Electronics and Computer Software Export Promotion Council, which receives support from the government, has also objected to public scrutiny. D.K. Sareen, its executive director, said he cannot speak as the matter is in the courts.
The issue gets even more complicated when government resources get used by way of shares and land at the risk of creating private monopolies, said Prashant Bhushan, a Delhi-based lawyer.
Its unconscionable that resources used by public-private projects are public resources, while the management and profits are privatized, he said. Though the government may have shareholding, they dont get profits because the management is privatized and private corporations siphon out money to give contracts to their own companies at inflated prices.
Non-cooperative
Several cooperatives, including the National Agricultural Cooperative Marketing Federation of India Ltd (Nafed), Krishak Bharati Cooperative Ltd (Kribhco) and National Cooperative Consumers Federation of India Ltd (NCCF), maintain the RTI Act is in contravention of cooperative principles.
Nafed, which has a legislator as chairman and an Indian Administrative Services officer as chief executive, has maintained that it has not received any funding from the government since 1996. Its total paid-up share capital was Rs.13.79 crore, of which the redeemable contribution of the government was Rs.10.74 crore, it states in its filing.
Hearings into cases involving NSE, Kribhco, Nafed and NCCF are set to take place on 17 March in the Delhi high court.
The cooperative Act has provisions to open its books for internal scrutiny. Our logic is that we are answerable to our members, not to the general public, said Anita Manchanda, chief executive of the National Cooperative Union of India, the premier agency of the countrys cooperative movement. According to her, government equity in grassroots agriculture cooperatives is 4.39%, and is less than 10% in the entire sector.
Broadly speaking, resistance to open up information banks has come from all quarters, including the Intelligence Bureau, defence and the judiciary.
RTI activists have also been striving to bring assets of public servants, including legislators, Central ministers and bureaucrats into the public domain. At present, members of Parliament file returns to their respective Houses and also to the Election Commission of India.
While the RTI Act has shown that information can empower citizens, it also acts as a leveller against inequality and discrimination.
RTI activist Subhash Chandra Agrawal said nothing is possible without a fight when it comes to digging up information, whether in a public agency or a public-private setup.
Last year, Agrawal asked about the segregation of pyre platforms at Nigambodh Ghat, Delhis biggest cremation ground jointly run in PPP by the Municipal Corporation of Delhi and Arya Samaj, a religious institution. He had demanded note filings that led to the decision to create so-called VIP pyre platforms.
Secrecy is dangerous, said Agrawal. Without information, discrimination can persist even in death.
Anuja contributed to this story.