A very important order is made by CIC, Shailesh Gandhi on above subject i.e. bodies under publicprivate partnership (PPP).
The applicant had sought information from the Public Health Foundation of India, New Delhi (PHFI). While PHFI provided all the information sought, it stated that it is not a ‘public authority’ as defined under the RTI Act and it is a completely autonomous institution.
The applicant wanted the Commission to rule on this point, i.e., whether PHFI, (a PPP body) is covered under the RTI Act or not.
The Commission noted as under: “From a plain reading of the section 2(h), it appears that PHFI is not covered under clauses (a), (b), (c) & (d)(ii) of section 2(h) of the RTI Act. Therefore, the issue which remains to be determined is whether PHFI gets covered under clause (d)(i) of section 2(h) or not. The said clause reads: body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate Government.”
It appears that PHFI is not ‘owned’ by the appropriate Government. As regards being ‘controlled’ by the appropriate Government, the said term has not been defined under the RTI Act. There are various forms in which the Government exercises control over an entity, which is relevant in determining whether the latter is a public authority. On perusal of the information about PHFI’s governing board, the Commission noted that amongst its 30 Board members are:
1. Dr. Montek Singh Ahluwalia, Deputy Chairman, Planning Commission, Government of India;
2. P. K. Pradhan, Secretary, Ministry of Health and Family Welfare, Government of India;
3. Vishwa Mohan Katoch, Secretary, Department of Health Research, Ministry of Health and Family Welfare and Director General, Indian Council of Medical Research;
4. T. K. A. Nair, Principal Secretary to the Prime Minister of India; and
5. Dr. R. K. Srivastava, Director General Health Services, Ministry of Health and Family Welfare, Government of India.
Thus, at least one-sixth of the members of the governing board of PHFI consist of senior public servants. At the hearing held on 24-1-2012, 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. 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 (PPP) 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.
The RTI Act does not specify ‘complete control’ in section 2(h). As per P. Ramanatha Aiyar’s, ‘The Law Lexicon’ (2nd Ed., Reprint 2007 at p. 410), the term ‘control’ means — ‘power to check or restrain; superintendence; management . . . . . . .”. It appears that the presence of senior Government servants on the board may check or ensure that decisions taken in PHFI are in consonance with the Government’s avowed objectives. Therefore, the presence of a fair degree of Government control on the decisions of PHFI cannot be ruled out. It follows that PHFI is ‘controlled’ by the appropriate Government. This may not be complete control, but five top public servants would exercise some degree of control, which would be significant.
The respondent had doing the hearing also admitted receiving Rs.65 crore from the Government. In this regard, reliance may also be placed on the complainant’s contention that in the 20th Report of the Department-Related Parliamentary Standing Committee on Health and Family Welfare submitted to the Rajya Sabha (2007), it was noted that “The Government of India is contributing Rs.65 crore, approximately one-third of the initial seed capital required for kickstarting the PHFI and for establishment of two Schools of Public Health. The remaining amount (approximately Rs.135 crore) is being raised from outside the Government, namely, Melinda & Bill Gates Foundation (Rs.65 crore) and from high net-worth individuals. PHFI is managed by an independent governing board that includes 3 members from the Ministry of Health and Family Welfare viz. Secretary (H&FW); DG ICMR and DGHS. T. K. A. Nair, Principal Secretary to Prime Minister, Dr. M. S. 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 Government would ensure that the decisions taken in PHFI are in consonance with the objectives for which PHFI has been supported by Government of India. It is expected that all members of the Governing Board would ensure the functioning of the Foundation as a professional organisation and with complete transparency.” (emphasis added). Thus, 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 it is coverage by the RTI Act seems at variance with this.
Further, though the term ‘financed’ is qualified by ‘substantial’, section 2(h) of the RTI Act does not lay down what actually constitutes ‘substantial financing’. It is akin to ‘material’ or ‘important’ or ‘of considerable value’ and would depend on the facts and circumstances of the case. The funding sources of PHFI are foundations, private donors and the Ministry of Health and Family Welfare, Government of India (MH&FW). At the hearing held on 24-1-2012, the respondent stated that PHFI was set up in 2006 with an initial fund corpus of Rs.200 crore (at present Rs.219 crore), out of which Rs.65 crore were provided as grant by MH&FW. It follows that Government funding in PHFI is to the tune of 30%, which cannot be considered as insubstantial. Moreover, even if taken on absolute terms, a grant of Rs.65 crore given by the Government from its corpus of public funds cannot be considered as insignificant and would render PHFI as being ‘substantially financed’ by funds from the Government.
Citizens have a right to know about the manner, extent and purpose for which public funds are being deployed by the Government. Having said so, 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 Rs.1 crore would constitute ‘substantial financing’ rendering such entity a public authority under the RTI Act.
Furthermore, 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 organisations 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, mo-nopoly 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.
As a consequence of being a public-private partnership, PHFI has received a substantial grant of Rs.65 crore from the Government initially. Further, as per the complainant’s contention — 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 Rs.30 crore in financial grant for setting up IIPH. The Gujarat Government provided 50 acres in Gandhinagar and Rs.25 crore as grant. The Orissa Government provided 40 acres near Bhubaneswar and the Delhi Government spent Rs.13.82 crore on acquiring 51.19 acres of Gram Sabha land in Kanjhawala village for PHFI to set up IIPH. 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 u/s.2(h) of the RTI Act.
I may note that PHFI subsequent to the hearing, itself agreed to submit itself to the jurisdiction of the RTI Act and the Commission further noted as under:
“It may not be out of place to mention that in recent years, there has been an emergence of multitude of public-private partnerships in different sectors. As described above, PPPs envisage an arrangement between the Government and private entities with clearly laid down rights and obligations. By their very nature, PPPs stipulate certain contributions from the Government, which may be monetary as well as non-monetary — to which values can be attributed. Moreover, 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. Given the above, PPPs would come within the ambit of ‘public authorities’ as defined in the RTI Act, thereby enabling citizens to know/obtain information about them. 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.”
In this instance the Commission notes with some dismay that the highest levels of public servants in India did not accept the citizen’s enforceable Right to Information in PHFI, despite the Government substantially funding it and exercising some control.
This strengthens the plea by the Commission that all public-private partnership agreements must have a clause that they are substantially funded by the appropriate Government and hence accept that they are public authorities as defined in the RTI Act. Without this, even an Institution like PHFI which has a distinguished board tries to refuse the Indian citizen his enforceable fundamental right. Finally, the Commission ruled:
“PHFI is public authority u/s.2(h) of the RTI Act and directed the chairman of PHFI to appoint a Public Information Officer and a First Appellate Authority — as mandated under the RTI Act before 15 March 2012 and also ensure compliance with section 4 of the RTI Act.”
[Kishan Lal v. Director (Development & Strategy) Public Health Foundation of India, New Delhi, decision No. CIC/SG/C/2011001273/17356 complaint No. CIC/SG/C/2011/001273, decided on 14-2-2012]
