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Right To Information: Necessary Checks And Balances Of The Public Private Partnership Model

Vidushi Pranay
22 Oct 2021 5:59 AM GMT
Right To Information: Necessary Checks And Balances Of The Public Private Partnership Model

What is a Public Private Partnership Model? Public-Private Partnership Model or the PPP model is an arrangement between government and private sector for the provision of public assets and/or public services in which private organizations participate in decision making and production of the goods and services that has been provided by the public sector and in which the...

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What is a Public Private Partnership Model?

Public-Private Partnership Model or the PPP model is an arrangement between government and private sector for the provision of public assets and/or public services in which private organizations participate in decision making and production of the goods and services that has been provided by the public sector and in which the private sector shares the risks. Public-private partnerships allow large-scale government projects, such as roads, bridges, or hospitals, to be completed with private funding. In this type of partnership, investments are undertaken by the private sector entity, for a specified period of time. These partnerships work well when private sector technology and innovation combine with public sector incentives to complete work on time and within budget.

When was Public Private Partnership Model included under RTI?

Mr. Gajendra Haldea, advisor of the Planning Commission suggested the inclusion of PPP Projects under the RTI Act, 2005. The RTI Act, 2005 was passed by the Parliament in June, 2005 and came into force from October, 2005. However, the State Level RTIs were first successfully enacted by the State Government of Karnataka in 2000, Goa in 1997, Rajasthan in 2000, Tamil Nadu in 2001, Delhi in 2001, Maharashtra in 2002, Assam in 2002, Madhya Pradesh in 2003, Jammu & Kashmir in 2004 and Haryana in 2005.

The Right to Information Act, 2005 mandates timely response to citizen's requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a– RTI Portal Gateway to the citizens for quick search of information on the details of first Appellate Authorities, PIOs etc. amongst others, besides access to RTI related information / disclosures published on the web by various Public Authorities under the government of India as well as the State Governments. The Right to Information Act, 2005 (RTI Act) was enacted by the Parliament of India to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed. The Act is a big step towards making the citizens informed about the activities of the Government. Under this act, information can be sought by any citizen from a public authority, who is required to dispense it expeditiously within 30 days. Earlier, the disclosure was restricted in India by the Official Secrets Act, 1923 and other laws which were later loosened by the introduction of the Right to Information Act of 2005.

Who comes under the ambit of RTI?

The Right to Information Act, 2005 cleared the ambiguity between a public and private authority under Section 2(h) of the act by defining a 'public authority'. As per Section 2(h), "public authority" means any authority or body or institution of self-government established or constituted—

  • by or under the Constitution;
  • by any other law made by Parliament;
  • by any other law made by State Legislature;
  • by notification issued or order made by the appropriate Government, and includes any—

I.Body owned, controlled or substantially financed;

II.Non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate government;

Private Bodies were not included in the Act by the Indian Legislatures directly. The information of the private companies can be obtained by its regulator which the company is bound to furnish. Although the regulator receives the information but not all of the information can be shared by the public. Under the Section 8 and Section 9 of the Act, certain categories of the information are exempted to maintain the privacy of the private bodies.

What is the difference between public and private authority?

The distinction between a private and a public authority has evolved with time and the courts have made a valiant effort to define the two separate entities. In the case of M.P Varghese V. Mahatma Gandhi University, the Hon'ble High Court of Kerela, while elaborating the meaning of public authority in the RTI Act, 2005 stated that those organizations which are receiving the financial aid from the state are under the ambit of public authority. The word State is defined under Article 12 of the Indian Constitution in enforcement of Fundamental Rights while the Right to Information is intended at achieving the object of providing an effective framework for effectuating the Right to Information recognized under Article 19 of the Constitution of India.

However, in the landmark case of Sarbjit Roy v. Delhi Electricity Regulatory Commission, the Central Information Commission reaffirmed that privatized utility companies are also included under the ambit of the Right to Information Act, 2005 regardless of their privatization.

Private bodies are not covered under Section 2 (a) of the Act. As per Section 2(a), "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly—

  • by the Central Government or the Union territory administration, the Central Government;
  • by the State Government, the State Government.

However, Private Bodies are covered under Section 2(f) of the Act which states that "information" means any material in any form including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form an information relating to any private body which can be accessed by a public authority under any other law for the time being in force. Reading it with Section 8 (1) (j) of the Act which states that information which can't be denied to the State Legislature and the Parliament can't be denied to any person, it can be interpreted that private bodies also falls under the RTI Act, indirectly.

Now the question arises that, if the public authorities have the Public Work Departments established to do certain tasks assigned to them in different fields.

Why do we need the Public Private Partnership Model? What is the Impact of RTI on PPP Model?

Private entity is chosen on the basis of open competitive bidding and receives performance linked payments. PPP route can be alternative in developing countries where governments face various constraints on borrowing money for important projects. It can also give required expertise in planning or executing large projects. As PPP involves full retention of responsibility by the government for providing the services, it doesn't amount to privatization. There is a well-defined allocation of risk between the private sector and the public entity. While the Right to Information Act states that only those private organizations which have "substantial" funding from the government come under the purview of the RTI Act, in cases where these entities are in partnership with the government, it is possible to get necessary information out of them. In today's world, when many public and private bodies are entering into collaboration for the development of the society, private bodies can use the provisions of the RTI Act as a shield. In such a scenario, transparency could be hampered. The Act says that only if private organizations are "substantially" funded then they come under the purview of public domain. But what is substantial funding is unanswered. Benefitting from this loophole, the private bodies take cover and refuse to give information to the person or group.

What are the disputes that brought Public Private Partnerships under RTI?

An excellent case is that of the Ideal Road Builders (IRB), a private agency which collects toll fees from most of the highways in Maharashtra, including the Pune-Mumbai Expressway. It is impossible to procure information regarding the data of toll collection. However, in such cases, since there is a partnership with the Government, public can get access to such information from the government organization. The Maharashtra State Road Development Corporation (MSRDC), the government body in this case which is mandated to monitor the toll collection itself has not monitored the revenues of the IRB despite appointing an independent engineering consultant, STUP Consultants Pvt. Ltd. However, public demanded this information under RTI Act; and thereby the MSRDC was compelled to request the IRB to send the data of toll collection, year-wise. One of the officials confessed that they had only recently asked the IRB to supply information due to pressure of RTI queries which was previously untouched.

In the case of Delhi Metro Rail Corporation, the DMRC is considered as a private entity and any query under the RTI from the DMRC is denied. "But in a public-private partnership, where both types of entities are there the public partner." The Delhi High Court said that even those companies in which government has a minority stake can be brought under the purview of Right to Information Act and declared National Agricultural Cooperative Federation of India Ltd (NAFED) as public authority. Interpreting the Act, Justice S. Muralidhar said there is no need to have deep or pervasive government control over an institution to bring it under the ambit of the transparency law.

"The absence of any adjective like deep or pervasive qualifying the word controlled in the RTI Act means that any control over the body by the central government will suffice to make it a public authority," the court said adding "a controlling interest through shareholding does not necessarily mean majority shareholding."

What if a public private project is substantially controlled by the government employees?

Another such case related to RTI and PPP Model is that of Kisan Lal V. Rohit Prasad.

The plaintiff was seeking the information regarding the funding received by the government and expenses and various other information from the Public Health Foundation of India. The Public Health Foundation of India (PHFI) is an autonomous body duly registered under the provisions of the Societies Registration Act of 1860. They mentioned that as public-private partnership, PHFI is not a public authority as defined under the Right to Information Act, 2005 and is a completely autonomous institution. PHFI is therefore not covered under the provisions of the said Act. The reply was challenged by the complainant on the grounds that Supreme Court of India and acknowledged Article 19(1) of the constitution of India stating that the right to information is a fundamental right of the citizen.

In this matter, the main complaint of the Complainant is that PHFI being a public authority has refused to accept his enforceable right to information under the RTI Act. Therefore, the question which arose for determination in the given case is whether PHFI is a public authority under the RTI Act. At the hearing, the Respondent claimed that most of the Government officials on the board of PHFI were occupying such positions in private capacity. This Bench is of the view that such a claim is untenable. The Commission can only assume that such Public Servants must necessarily be acting on behalf of the Government, when they are required to take executive decisions as members of the board, in a public-private partnership (PPP) such as PHFI. Any other conclusion would be an improper slur on their integrity.

The Respondent also stated that PHFI is a public-private partnership. It is relevant to mention that PPPs are in the nature of legally enforceable contractual agreements between public authorities and private organizations with clearly laid out terms and conditions, and rights and obligations. PPPs, by their very nature, stipulate certain contributions by the Government such as giving land at a concessional rate, grants, monopoly rights, etc. In cases such as grants, direct funding by the Government can be easily calculated. In cases such as giving monopoly rights or land at a concessional rate, etc., value(s) must be attached and the same would tantamount to indirect financing by the Government. In other words, PPPs envisage a partnership with public funds, directly or indirectly, and therefore citizens have a right to know about the same. Hence, there appears to be substantial financing both directly and indirectly by the Government. It follows from the above that PHFI is controlled and substantially financed by the Government. Therefore, this Commission rules that PHFI is a public authority under section 2(h) of the RTI Act.

Thus, in a Public-Private Partnership, one can get access to public documents by putting a query the 'Public Partner'.

One of the reasons for the juggernaut success of the PPP model in India is that it provides the best of two worlds. While private sector efficiencies provide the competitive edge, which is the sine qua non of any business venture, partnership with the government ensures continuity, stability and most importantly credibility, which is any business' greatest asset. However, these assets are not freebies and come with strings attached -- in most cases, transparency and accountability to the public at large. While there is no doubt that the governments -- both at the Centre and the states -- are obliged to provide information sought by any person under the Act, the Indian Courts are yet to decide whether PPP projects are to be treated as commercial ventures and retained outside the purview of the Act, or subjected to the same levels of accountability as expected from a democratically elected government and its various organs.

If we look from the perspective of an entrepreneur, it would not be reasonable to put PPP projects under the scrutiny of RTI Act, 2005. It would act to the detriment of the purpose of such arrangement of providing world class facilities to the citizens of and to be gazed upon and haltered at every step.

In The Bangalore International Airport Limited (BIAL) Case, the Andhra Pradesh High Court delivered the authoritative judicial pronouncement on this question of law. PPP formed by the partnership of KSSIDC, AAI and an association of private air operators, is amenable to the RTI Act. The justification provided by the High Court for its finding was that the concessions provided to the concessionaire by the state government including cost of land required, uninterrupted supply of water and power, etc. translated into cash flows, the figure arrived would be a substantial amount. Bringing PPP under RTI subject to no conditions would be harmful to the efficiency factor that the private player brings in. Hence, keeping information as to public assets and utilization inclusive and excluding the commercial the commercial and other financial aspects would best serve the purpose.

In the case of Savio J. F. Correia vs Mormugao Port Trust, Commission observed that the CPIO has not substantiated as to what aspect of commercial confidence will be hampered by the disclosure of the concession agreement which is merely a contract agreement. A contract agreement entered into by a public authority at the expense of public exchequer should ordinarily be available in public domain. Moreover, in the grounds of Second Appeal, Appellant has rightly placed his reliance on a full bench decision of the Commission.

Is it reasonable to enforce RTI on PPP?

Any public document must stand the scrutiny of the RTI Act for a plea of confidentiality to be sustained. Planning Commission - which has a separate Department dedicated to Public Private Partnerships and is known to have prepared the Model PPP Agreements for the Government has categorically stated that any plea of confidentiality of those documents was insubstantial and deserved to be rejected. Comptroller & Auditor General of India also advised the Commission that there was no room for confidentiality in matters such as PPP Agreements. Such private parties frequently win the right to participate in the PPP Agreement in open competition, or are selected for their exclusive and extra-ordinary competence in specified areas of activity. A matter of such critical importance to the country cannot be negotiated and settled behind the back of its people. The third-party cannot take recourse to the argument of its vital commercial and technical details being disclosed to its rivals for the simple reason that it is the consideration of these very details that won him the competitive bidding in the first place. It is important and crucial that the choice of the Private Partner by the Government is not cloaked in undue secrecy.

The aforesaid ratio squarely applies to the facts of the instant case and therefore, Commission summarily rejects the denial claimed under Section 8(1)(d) of RTI Act which states that information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. Therefore, it is evident that private bodies also fall under the ambit of the RTI Act through any public authority with which they are registered. If an individual wants to receive any information from a private body, it is necessary for him to identify the Public Authority with whom the private body is registered.

For example, banks register themselves through the Reserve Bank of India and Co-operative Societies register themselves through Deputy Registrar of Co-operative Societies. The information Commissioner of the Central Information Commission, M.M Ansari has also stated that as long as the private bodies and companies are answerable to a regulatory body or any department of the government, they fall within the purview of the law.

There is indeed ambiguity on the question of the categorization of Public Private Partnership, courts have different opinions on the model but the silver lining of transparency, accountability and credibility still defines itself with the help of Right to Information as the very tool to justify the purpose of the established partnership. The Planning Commission of India has refused to take any responsibility of bringing companies involved in public-private partnership (PPP) projects under the Right to Information (RTI) Act. The Commission said individual ministries which have tied up with private companies are responsible for these projects. There were several RTI applications filed seeking information on PPPs but the RTI Act is not clear itself if the company involved in such projects fall in its ambit. In an attempt to clear the confusion, Chief Information Commissioner Satyananda Mishra had written to the Planning Commission asking to make it mandatory for a private company under PPP to agree to share information under the RTI Act.

"RTI is not Right to Information on private companies. It pertains to information on public authority," Montek Singh Ahluwalia, the deputy chairman of Planning Commission said in a seminar. He stated that how a private firm performs its job is not a relevant issue from the RTI point of view while responding to the queries on the Chief Information Commissioner, Satyananda Mishra's proposal on bringing private firms under the ambit of RTI. The applicants can get access to information and public documents by approaching The Information Commissions established under the Act.

India is a diverse country and this diversity can be observed in the interpretation of laws by the different courts, Commissions and other law making bodies. The Public Private Partnership Model or the PPP Model has been implemented all across the ministries of India successfully. This is because the involvement of the private sectors provides competitive effectiveness and the partition of the government credibility. The Right to Information Act, 2005 helps citizens to request information from public offices and public authorities; this promotes transparency between the citizen and the government. Since, a major part of the government work is carried out by the private contractors, etc. it is necessary to provide/serve the public with correct information. By the applicability of Section 2(h), Section 8 and Section 9 of the RTI Act on the PPPs, it ensure that the important projects carried out by the government ensured to serve the public is still a public authority and not privatized. To conclude we can say that our country needs expressways of development and speed limitations should be imposed for the safety of the citizens, the similar can be said for the relation between RTI & PPP. PPP is the efficient and probably the best model for developing infrastructure of our nation and RTI provides the necessary checks and balances. Transparency among the PPPs is important to their existence and any hindrance in that can defeat the purpose of their existence.

The author Vidushi Pranay, has contributed this write-up during her research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.

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