Dr Raja Muzaffar Bhat
Bringing issues related to Public Private Partnerships (PPP’s) under the ambit of Right to Information Act (RTI) has been a challenging work not only for the anti corruption crusaders , Journalist and RTI activist but it has been an extra ordinary and demanding task for New Delhi based Central Information Commission (CIC) as well. We know that a major controversy had erupted many years back during Congress led UPA Government , between CIC and the erstwhile Planning Commission for bringing Public Private Partnerships (PPP) under the provisions of Right to Information Act, 2005 . The Central Information Commission (CIC) wanted them to be brought under the ambit of RTI Act, but the erstwhile Planning Commission was reluctant to make that happen.
In pursuance to this particular issue a well known Right to Information Activist Vekatesh Nayak associated with New Delhi based Commonwealth Human Rights Initiative (CHRI) filed an RTI application with the Department of Ports, Puducherry during August 2011 asking for the “Concession Agreement” related to the PPP project. After four long years some positive developments are seen vis a vis PPP. The Central Information Commission (CIC) has ordered that the Concession Agreement be disclosed after severing those portions relating to commercial confidentiality
The then Chief Information Commissioner in January 2011 had sent a letter to the erstwhile Planning Commission of India with some recommendations that included every PPP proposal including the draft agreement to be made public inviting people’s comments on it. The PPP agreement include a clause requiring that the Special Purpose Vehicle (SPV) created for the purpose of implementing the PPP project becomes a public authority under the RTI Act and the Ministry/public authority responsible for the PPP project also become directly responsible for making all permissible information transparent under the RTI Act.
The then Deputy Chairman of the Planning Commission of India Montek Singh Ahluwalia in his quick reply to CIC stated that it would not be proper for the Planning Commission to expand the jurisdiction of the CIC through PPP agreements! Ahluwalia said that Planning Commission would seek legal opinion from the Department of Legal Affairs. Meanwhile, he pointed out that Concession Agreements, Maintenance Manuals, Maintenance Programmes and Maintenance Requirements can be obtained by any person from the Concessionaire.
After having accessed the correspondence from the CIC website Venkatesh Nayak decided to test the truth of the Planning Commission’s claim wherein
any person could obtain the concession agreement without filing an application under Right to Information Act (RTI). Venkatesh chose the Puducherry PPP project as it would fall under the administrative control of Government of India and therefore would be subject to the jurisdiction of the CIC which he could access easily being based in Delhi. Given the confidence of the Planning Commission in the willingness of the Concessionaire to part with copies of the Concession Agreements, Venkatesh decided to check whether a similar commitment to transparency exists within the Department of Ports, Puducherry. He filed an RTI application in August 2011 seeking a copy of the Concession Agreement. The PIO of the Department of Ports did not even bother to send a reply to his RTI application. The matter finally landed up at Central Information Commission (CIC) as Venkatesh’s 1st appeal was also rejected by the First Appellate Authority (FAA) of Department of Ports.
CIC’s order on PPP :
The Central Information Commission (CIC) heard Venkatesh Nayak’s second appeal in May 2014, more than 2 years later and asked the Department of Ports to file a status report on the PPP project. During the hearing it transpired that the PPP had been shelved after prolonged litigation before Courts. Nevertheless the Department of Ports pleaded commercial confidentiality against disclosure. The appellant (Venkatesh) submitted a rejoinder at the hearing arguing why it is in the public interest that such information should be disclosed . The CIC passed an interim order directing the Department of Ports to give further details of the court cases and reserved its final order. Finally after more than a year of reserving its order, in June 2015 the CIC has issued a final order directing the Department of Ports to disclose the Concession Agreement after severing the information related to commercial confidence. Venkatesh is yet to get the information from the Department of Ports but I can say it is the victory of truth and justice which compelled CIC to issue judgment against Department of Ports .
In Jammu and Kashmir state we have several projects operational under Public Private Partnership (PPP). Most of these projects have been allotted to companies who deal with hydro power generation and infrastructure development like construction of highways , roads , bridges and flyovers etc. People of this state are hardly aware about the procedures adopted by State Government and private companies who have been allotted the contracts under PPP . In view of the CIC’s judgment of making PPP Concession Agreements a public document. It is hoped that without any delay the state Government will make these documents voluntarily and proactively available so that people should not be compelled to seek these details under J&K RTI Act 2009.
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Dr Raja Muzaffar Bhat