PPPs envisage a certain degree of government control in their functioning so that the decisions taken are in accordance with the objectives for which the partnership was set up. Therefore PPPs also come within the ambit of ‘public authorities’ as defined in the RTI Act enabling citizens to know or obtain information about them, the CIC said
Chief Information Commissioner (CIC) Shailesh Gandhi said citizens have a right to know about PPPs (public-private partnerships), which directly or indirectly envisage a partnership with public funds. He also ruled that any entity which has received finance or grant of over Rs1 crore from the government would constitute ‘substantial financing’ rendering such entity a public authority under the RTI Act.
In an order issued on 14th February, the CIC said, “At present, most PPPs do not even accept the applicability of the RTI Act to them and wait for the issue to be adjudicated upon at the commission’s level. For this some citizen has to pursue this matter. Such practices are required to be brought to a minimum and PPPs must comply with the provisions of the RTI Act.”
The Public Health Foundation of India (PHFI), a ‘public-private partnership’ (PPP) that was not ready to submit itself to the RTI Act, 2005, has now finally surrendered and is to be brought under the Act. This follows the decision given by Chief Information Commissioner (CIC), Shailesh Gandhi, where he asked PHFI to appoint a public information officer (PIO) and First Appellate Authority (FAA) under the RTI Act by 15 March 2012.
According to Kapil Bajaj, who represented Kishan Lal, the petitioner, during the hearing, PHFI has no other option but to comply with the provision of the RTI Act. “PHFI has not suddenly realised after being taken to the Information commission that it would like to ‘voluntarily’ submit itself to the law but because it has been clearly shown to be a public authority under Section 2(h),” he said.
Mr Gandhi also asked the Health Foundation to pay a compensation of Rs3,000 to Mumbai-based activist Kishan Lal. Last year, Mr Lal filed an application under the RTI Act, seeking information about PHFI. However, PHFI said that it is an autonomous body duly registered under the provisions of the Societies Registration Act of 1860 and as a PPP it is not a ‘public authority’ as defined under the RTI Act, 2005. The Health Foundation further stated that as it is a completely autonomous institution, is not covered under the provisions of the said Act.
During the hearing, the CIC found out that one-sixth of the 30 members of the governing board of PHFI are public servants or senior official from the Union government. PHFI, however, claimed that most of the government officials on its board are occupying the positions in their ‘personal capacity’.
Terming the claim of PHFI as ‘untenable’, Mr Gandhi, in his order said, “It is difficult to assume that senior public servants can be on the board of an organisation like PHFI-which has numerous interactions with the government, in private capacity. In fact, this would necessarily imply a conflict of interest. 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 such as PHFI. Any other conclusion would be an improper slur on their integrity. It is not possible that India’s leading public servants could be acting in any manner, but as representatives of the government when they are on the board of PHFI. It is also true that significant funding is provided by the government to PHFI. Hence, it is presumed that the five officials on the board of PHFI are discharging their duties as public servants.”
During the hearing, Mr Lal placed before the CIC, a report submitted to the Rajya Sabha in 2007 by the Department-Related Parliamentary Standing Committee on Health and Family Welfare. The report stated, “The Government of India is contributing Rs65 crore, approximately one-third of the initial seed capital required for kick-starting the PHFI and for establishment of two schools of public health. The remaining amount (approximately Rs135 crore) is being raised from outside the government, namely, Melinda & Bill Gates Foundation (Rs65 crore) and from high net-worth individuals. PHFI is managed by an independent governing board that includes three members from the ministry of health and family welfare viz. secretary (H&FW); DG ICMR and DGHS. Mr TKA Nair principal secretary to the prime minister, Dr MS Ahluwalia, vice-chairman, Planning Commission; Sujata Rao, AS&PD, NACO, ministry of health; Dr Mashelkar, DG CSIR are also members of the governing board. The presence of the officials from the government would ensure that the decisions taken by PHFI are in consonance with the objectives for which PHFI has been supported by the Government of India. It is expected that all members of the governing board would ensure the functioning of the foundation as a professional organization and with complete transparency.”
The CIC observed that the Parliamentary Standing Committee also assumed that the vice-chairman of the Planning Commission, principal secretary to the prime minister and other public servants were ensuring that decisions of PHFI were in consonance with the government’s objectives and complete transparency. “PHFI’s refusal to accept its coverage by the RTI Act seems at variance with this,” he noted.
PHFI admitted that it was set up in 2006 with an initial fund corpus of Rs200 crore (at present Rs219 crore), out of which Rs65 crore were provided as grant by the ministry of health and family welfare (MH&FW). The CIC noted that the funding of about 30% from the government cannot be considered as insubstantial. “…a grant of Rs65 crore given by the government from its corpus of public funds cannot be considered as insignificant and would render PHFI as being ‘substantially financed’ byfunds from the government,” he said in the order.
Commenting that citizens have a right to know about the manner, extent and purpose for which public funds are being deployed by the government, Mr Gandhi, said, “…not every financing of an entity in the form of a grant by the government would qualify as ‘substantial’, but certainly a grant of over Rs1 crore would constitute ‘substantial financing’ rendering such entity a public authority under the RTI Act.”
In another significant ruling, the CIC said that PPPs, by their very nature, stipulate certain contributions by the government such as giving land at a concessional rate, grants and monopoly rights. 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, value(s) must be attached and the same would tantamount to indirect financing by the government. In other words, PPPs envisage a partnership with publicfunds-directly or indirectly- and therefore citizens have a right to know about the same, Mr Gandhi said.
Being a public-private partnership, PHFI has received a substantial grant of Rs65 crore from the government initially. Further, PHFI has been receiving free land and handsome financial grants from state governments for setting up ‘Indian Institutes of Public Health’ (IIPHs) as part of the public-private partnership. For instance, the Andhra Pradesh government provided PHFI with 43 acres of land in Rajendra Nagar area of Hyderabad free of cost and Rs30 crore in financial grant for setting up IIPH. The Gujarat government provided 50 acres in Gandhinagar and Rs25 crore in grant. The Orissa government provided 40 acres near Bhubaneswar and the Delhi government spent Rs13.82 crore on acquiring 51.19 acres of Gram Sabha land in Kanjhawala village for PHFI to set up IIPH.
“This ruling is another slap on the face of the central government, steeped as it is corruption — for implementing a policy (PPP policy) in a manner that makes a mockery of the principle of transparency and accountability to the public enshrined in the Constitution and the Parliamentary enactment in the form of the RTI Act,” added Mr Bajaj.