Guest Post: Amrtha Kasturi Rangan, Arghyam

“When a State Government instead of itself undertaking a work, if it allows an agency like the petitioner Company by substantially funding them to undertake such work which is essentially that of a municipality, no one can say that such work of the petitioner company as a private activity. On the other hand, it is very much a public activity over which public interest can generate”.

Judgement in WP NO. 9794 of 2008 and M.P. Nos. 1 and 2 of 2008

The Right to Information (RTI) Act, 2005 was enacted to ensure transparency and accountability. As per the Act any citizen can write and ask for information from a “public authority”.  The Act also requires that public authorities make information about themselves available to the public – mandatory disclosure.

From its time of enactment, there have been several challenges in operationalizing the RTI Act. A progressive civil society has constantly challenged hesitation and delay in providing information. Several ambiguities have required judicial intervention to interpret the letter and the spirit of the Act. Here we look at the success of widening the scope of accountability to include private agencies who partner with the government under the Public Private Partnership (PPP) model.Private companies as such are excluded from the purview of the Act. However, when a private company that is to provide essential services that were meant to be provided by the government, such as water supply through the PPP model refuse to give information, a problem arises. Citizens who do not have access to project information cannot make informed choices on how their water will be supplied to them. This has now been remedied through a landmark judgement obtained by Manthan.

The New Tirupur Area Development Corporation Limited (NTADCL) was incorporated in 1995. “The project of NTADCL is the first private water supply and sanitation project in the country and one of the largest private investments in urban infrastructure in the country.”  Water is provided to Tiruppur industrial estate, Tiruppur municipality and a number of neighbouring villages.

Manthan’s request for information under the RTI Act, in 2007, on tariff pricing and other details from NTADCL was rejected on account of it not being a public authority. This argument was quashed by the Information Commission which instructed NTADCL to provide the information sought for by Manthan.

The reluctance of NTADCL to provide information resulted in its filing a petition in the High Court of Madras against the order of the Commission. The High Court upheld the Commission’s order and dismissed NTADCL’s petition. It has ruled that NTADCL will fall under the meaning of a public authority and all information requested for by Manthan needs to be provided to it immediately.

In his decision Justice Chandru rightly observes that– “When Constitution had mandated the local bodies to discharge such functions and the State legislature had created a local body with the essential function of water supply and sewage treatment and if that work is entrusted to another body corporate, certainly that body corporate discharges functions akin to a local body. Therefore, every citizen has a right to know the working of such bodies, lest they may be fleeced by such companies which until the BOOT period must explain to the people about their activities. Transparency in their functioning and the right to know by the citizen can never be curtailed on the plea of the petitioner company before the Commission”.

This Order that ensures that the access to information from such private agencies that execute the work of the government is not only mandatory under ordinary law such as the RTI Act but also under the Constitution under Article 226.
Manthan’s consistent effort over the last two years to ensure transparency and accountability ensures that people who seek to understand projects that come under the PPP model in any sector will be provided this information. This will help us go one step closer to informed decision making and better governance.

The entire Order and facts of the case can be read here