Public utilities elude the RTI net. The cloak of privacy protects companies

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Shonali Ghosal
New Delhi

Deniers and the denied: The Mumbai International Airport
Deniers and the denied: The Mumbai International Airport, Photo: Deepak Salvi

WITH GOVERNMENT agencies like the CBI, NIA and NATGRID having escaped the RTI scanner, public private ventures too are trying to slink away even as activists rally to include them under the Act. After the Central Information Commission (CIC) ruled on 30 May that Mumbai International Airport (Private) Limited (MIAL) is a public authority, the company was set to be the first Public- private Partnership (PPP) to be brought under RTI. That, however, was before MIAL got a stay order from the Delhi High Court.

Riding close on its heels, on 24 June, the Maharashtra State Information Commission (SIC) was supposed to decide whether Reliance Infrastructure Limited (RInfra) should be subject to RTI. No decision has yet been reached at. “There is no definite time frame, the decision will be taken soon,” says State Chief Information Commissioner (SCIC) Vilas Patil.

In 2008, Anil Galgali, 35, a journalistcum- RTI activist, filed an RTI asking RInfra about the procedure of changing electricity meters to one’s name after buying a flat. Once RInfra refused saying it was a private company, and therefore, not obliged to give out any information, Galgali shot off a complaint to the Maharashtra SIC. He claims that Suresh Joshi, the then SCIC, dismissed it. “ADAG Chairman Anil Ambani is a big man, that’s why people don’t act,” alleges Galgali. His reminder in 2009 was considered by current SCIC, Vilas Patil.

“The common man must be able to ask why there is no electricity, why his bill is high, etc. If the Maharashtra Electricity Regulatory Commission (MERC), which issues the distributor’s licence, comes under RTI, RInfra should too,” argues Galgali. His complaint states that RInfra is a public utility for various reasons. It distributes electricity to 27 lakh houses in Mumbai’s suburbs, the MERC issues RInfra a licence for power distribution and public shareholding in the company is 57.11 percent.

The SIC then consulted MERC to ascertain whether RInfra should be brought under RTI. Ashok Parulekar, 52, Under Secretary MERC explains: “It depends on a company’s functions and since we issue a distributor license to them, we were consulted by the SIC.”

RInfra’s licence expires this August; Galgali demands that it should either not be renewed or if renewed, RInfra must be brought under RTI. Though Galgali says that he is a “100 percent sure that RInfra will be declared a public authority and that the decision would be out in a week”, one cannot be sure.

Even if the SIC declares RInfra a public authority, it could hit other roadblocks. In 2008, Sanjay Shirodkar, a senior manager- cum-RTI activist noticed embassy cars parked for hours near the arrival terminal of Mumbai International Airport, while other cars were shooed away instantly. He also saw 1 litre packaged drinking water being sold at Rs 30 while the MRP was Rs 12. Shirodkar, 42, filed RTIs with the Airports Authority of India (AAI) and MIAL. While the AAI replied, MIAL refused.

He then complained to the CIC stating that AAI had a 26 percent stake in the PPP and the state government had waived Rs 200-250 crore stamp duty for MIAL. The CIC buttressed his claim, revealing that MIAL and AAI had a lease-rent contract, wherein MIAL paid only Rs 100 per annum for 2,000 acres of government land.

After the Information Commissioner (Central), Sushma Singh’s 30 May ruling, it seemed like MIAL had no option but to succumb to RTI scrutiny. But, that was not to be. Manish Kalghatgi, head, Corporate Communications of the GVK group that runs MIAL, confirmed they had challenged the CIC’s ruling and obtained a stay order from the Delhi High Court.

RTI applicants: Anil Galgali and Sajay Shirodkar
RTI applicants: Anil Galgali and Sajay Shirodkar

This is not the first case of its kind. In 2007, Delhi International Airport Limited (DIAL) had also been declared a public authority by the CIC, as had been the Bengaluru International Airport Limited (BIAL) by the Karnataka SIC in 2008. Both DIAL and BIAL challenged these orders in the Delhi High Court and the Karnataka High Court respectively and got stay orders.

While Benson Issac, 36, applicant in the BIAL case, has two lawyers working on it, Lt Col (retired) Anil Heble, 69, who had filed the RTI request to DIAL, has stopped following up on his. Perhaps, this is because their reasons for seeking information were different. Issac asked for suo moto declaration on BIAL’swebsite, which is basic information that public authorities must display. But Heble had filed RTIs to gather information to save his village, Shahabad Mohamadpur, from being acquired for airport land. Though it helped him stop the acquisition, he says “my personal battle in terms of expenses wasn’t worth spending my life’s savings on it”.

Issac’s argument is that the AAI had a 26 percent stake equity in BIAL, which got a Rs 350 crore interest-free subordinate loan and 4,000 acres of prime agricultural land at minimum rental from the government. Arguing along similar lines, Heble points out that AAI had a 26 percent share in DIAL too. Besides, DIAL is a joint venture meant to serve the public.

‘RInfra should be considered a public utility as it distributes electricity to 27 lakh houses,’ says Galgali

While the grounds for the MIAL, BIAL and DIAL cases are similar, RInfra is different. It throws up the question of what classifies as public authority. Factors like whether a company is a public utility are considered. But according to Chief Information Commissioner (Central) Satyananda Mishra, it comes down to ‘substantial funding’, a contentious issue.

Section 2(h)(d)(ii) of the RTI Act implies that any authority is a ‘public authority’ if it is “substantially financed directly or indirectly by funds provided by the government”. While Shirodkar believes that the lack of a definite number or percentage to decide on ‘substantial funding’ is RTI’s biggest flaw, Mishra accepts that a fixed number is “desirable for the sake of elegance and form” but holds that “it is difficult to implement”.

HIGHLIGHTING THE importance of deciding on a case-to-case basis, Mishra says that some important companies may be left out of RTI if a specific number is laid down. At the same time, he adds that there are too many complaints and appeals pending and if hundreds of other companies were included, new commissions would have to be set up. It therefore stands that although ‘substantial funding’ is a grey area, it remains important to determine who is a public authority.

In the case of MIAL, Shirodkar established substantial funding, showing both direct and indirect government funding. The same goes for BIAL and DIAL where the AAI has a 26 percent stake. Galgali’s complaint is based on facts like MERC issues RInfra a licence for power distribution, the public holds majority of shares in RInfra and the firm provides electricity to many houses in Mumbai’s suburbs.

“Proving that a firm is a public utility alone cannot make it an entity under RTI,” argues Mishra. “That way gurdwaras should become public authorities since they serve langar, which is a public activity.” But when RInfra provides an essential service — electricity to the public — the government is in a sense delegating its authority to it. “Shouldn’t it then be made accountable to the public?” asks Galgali.

An official from RInfra said (prior to the 24 June order) that they already have policies for those who seek information. “But we are a utility company and will be happy to respond if we have to come under RTI,” he added.

In the final analysis, after deeming various companies as the first public-private venture to come under RTI, there is yet to be a first. Will RInfra be the first? More importantly, will there ever be a first?

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