Last week, the Central Bureau of Investigation (CBI) booked the chairman of the GVK group of companies, GVK Reddy and his son, Sanjay Reddy, managing director of the Mumbai International Airport Ltd (MIAL) for financial fraud to the tune of Rs705 crore, in the running of the airport, thus emphasising that such public-private partnerships must be transparent in their functioning, as they get 'substantial' aid or collaboration from the government and are answerable to the public under the Right to Information (RTI) Act.
Ironically, a sustained RTI campaign by Pune-based RTI activist Sanjay Shirodkar, since April 2008, to bring MIAL as a public authority under the Act, bore fruit in 2011 when chief information commissioner (CIC) Sushma Singh ordered that MIAL is a public authority under the RTI Act. MIAL is in joint venture with the Airports Authority of India (AAI) for upgradation and maintenance of the Mumbai airport.
Curiously though, nine years later, on 18 May 2020, CIC Suresh Chandra reversed Ms Singh’s order stating that it is NOT a public authority. It is interesting to recall that, after the 2011 CIC order, MIAL went to the Delhi High Court to contest the claim that it is a public authority under the RTI Act. However, Delhi High Court sent the petition back to the CIC in 2019. Nine years later, after the CIC order, on 18 May 2020, CIC Mr Chandra orders that it is a private entity! Now, if this is not a rude joke on the public, then what is?
Mr Shirodkar, who is frustrated with the alleged nexus between government authorities and private parties, reeking in his view, of 'crony capitalism’, states, "it is so discouraging and shocking that information commissioners are so far apart in their connotation of what constitutes a `public authority’? How can a CIC, nine years later overturn an order which is clear as crystal on why his colleague previously declared it as a public authority? Now, with the CBI raid, it becomes even more crucial that we need RTI to demand transparency and accountability from MIAL. Instead, I have been slapped with tarikh pe tarikh for nine years and the CIC in May 2020 slams the door on my face."
Shirodkar had requested the following information under the RTI Act:
As per Airports Authority of India notification (File No. AAA/PERS/EDPA/Reg/2002) who is the “Competent Authority” at CSIA-Chhatrapati Shivaji International Airport, Mumbai-400099.
As per notification (File No. AAA/PERS/EDPA/Reg/2002)and mentioned in Section 18 of it, please provide a copy of policy guideline/government resolution/notification regarding parking or waiting of any vehicle of carriage within the airports and civil enclaves at CSIA-Chhatrapati Shivaji International Airport, Mumbai-400099.
Policy guideline/government resolution/notification, if any exemption given under Section 18 of Airports Authority of India notification (File No. AAA/PERS/EDPA/Reg/2002) to any one by the 'Competent Authority' at CSIA-Chhatrapati Shivaji International Airport, Mumbai-400099.
The MIAL official replied that it was not a public authority and that the RTI Act was not applicable to that organisation. Mr Shirodkar filed several RTI applications since 2008 and finally filed a second appeal. The CIC order by Sushma Singh in her order of 30 May 2011 ordered that: "we find no hesitancy in declaring MIAL as a public authority under clauses (d) and (i) respectively, of section 2(h) of the RTI Act. MIAL shall appoint a CPIO and FAA within 30 days of the receipt of this order and shall also fulfil the mandate of section 4(1) disclosure as mandated under the RTI Act, within 2 months of the receipt of this order.”
Aggrieved by the order, MIAL filed an appeal before the Delhi High Court. The Delhi High Court in its order of 17 May 2019 observed that: "…impugned order is set aside and the matter is remanded back to the CIC for a fresh consideration of the issue whether MIAL is a public authority within the meaning of section 2(h) of the Act. While doing so, CIC shall hear the respondent herein as well. The issue being of importance, it shall be appropriate that the same is decided as expeditiously as possible, but within a period of three months as an outer limit. It is made clear that this court has not expressed itself on the merit of the issue, which shall be considered by the CIC.”
Mr Shirodkar had argued that,
50% of shareholding by the MIAL constitutes substantial funding;
Stamp duty worth Rs250 crore waived off by the government of Maharashtra along with land and infrastructure of 2000 acres worth more than Rs80,000 crore in Mumbai given on Rs100 per year (lease premium), amounted to 'substantial funding';
AAI being the 26% of active partner in this JV had shirked the responsibility answering to public questions under the RTI Act; that for many years, AAI claiming to be the owner of Mumbai Airport property always passed the buck to its lessee i.e., MIAL on questions asked pertaining to owner’s land and infrastructure under RTI Act;
That the MIAL was an agent or instrumentality of the state and therefore, 'State' within the meaning of Article 12 of the Constitution of India; that the statutory functions performed by the AAI were enumerated in section 12 of the Airports Authority of India Act, 1994;
That the monies payable by the lessee, i.e., MIAL to AAI, were public monies and public funds; that MIAL was performing public functions in public interest; that the MIAL was a part and parcel of the ministry of civil aviation and all the details pertaining to the JV of AAI and MIAL should have been in the public domain i.e., in the website of the ministry of civil aviation in compliance with Section 4(1)(b) of the RTI Act.
The MIAL, though, insisted that it was incorporated under the provisions of the Companies Act, 1956 in the year 2006 as a special purpose vehicle to undertake the operation, management and development of the Mumbai airport. Private participants own 74% of the equity share capital and majority management rights in MIAL and the rest 26% of the equity share capital is held by the Airport Authority of India.
Surprisingly, CIC Suresh Chandra in his 18 May 2020 order stated that MIAL is not a 'public authority’ and Mr Shirodkar should try and get information from the Airport Authority of India (AAI) or from the ministry of civil aviation. The CIC blamed the delay on the COVID-19 crisis as one of the reasons!
CIC Chandra’ order states: "The Commission, after studying the facts and circumstances of the case, hearing both parties and perusal of records, feels that MIAL is not a ‘public authority ‘under S. 2 (h) of the RTI Act, 2005. We are also of the view that it may be open to the complainant to seek information through public authority for MIAL i.e. AAI or the ministry of civil aviation as the case may be. That being so, the complaint of the complainant is unfounded and the same is rejected. The Commission puts it on record that it could not meet the timelines provided by the Hon’ble High Court due to the reasons including Constitution of Bench, nonappearance of parties and COVID-19 which were procedural and beyond the Commission’s powers."
So, clearly, the vested interests of industry lobbies who collaborate with the government and make a good deal out of public funds and infrastructure are protected while the common citizen is pushed against the wall, for demanding transparency of a public project!
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall