Easy, cheerful and thought-provoking
In the post-colonial world, the ghost of the White...
Chances of a single answer to two opposing questions on the RTI Act means there is something to it which the rule-books don’t tell you about—but you can bowl googlies to them, too, when the system expects you to hold a straight bat to their bouncers
Here is a single answer to two diametrically opposite questions—“Yes, you can file an application under the Right to Information Act of India 2005 (RTI Act), if the entity is substantially financed or in any other way subject to the above Act”. What to do after that, if a reply is not sent or received, is another matter altogether—and one that can have consequences which cannot be predicted, for the said entity. All it costs you is Rs10 plus Re1 service charges—total Rs11.
The questions to this answer are either from private companies and entities which consider themselves above and beyond the RTI Act—or from people who wish to get responses under the RTI Act from such private companies or entities. Whether they are schools, sports associations, companies working under PPP (public-private partnership) or joint-venture projects, private airport operators, large or small corporates funded heavily by public sector banks and financial institutions (FIs), or similar—filing and sending an RTI application is your birthright, even if they have not made provisions for receiving them.
As always, anecdotal experiences used as actual case studies. The most important, for this writer, of course, goes back to 2006 when an RTI application on the Indian Olympics Association was initially refused—thrown away and out, as a matter of fact, along with the undersigned. The result, after filing the application subsequently by post, by way of a judgement at the Central Information Commission (CIC) as well as Delhi High Court, became a citation, became a citation—which can be seen here.
Briefly, it defines who is a “public authority”, the entities that come under the RTI Act of India, 2005.
But of late, there have been a few applications which go here and there, and then around some more, with the entity being quizzed using every trick in the book to evade providing responses. Prominent here are companies like the Delhi International Airport (DIAL) which operates the Delhi Airport, some sports associations like BCCI (cricket) and FMSCI (motorsports), SEBI and the stock exchanges.
But where there is a will, there is a way, and it is always important to remember that most private companies in India of any large size, whether home-grown or international or foreign, have some amount of “substantial financing” from the Indian government in their books, hidden away in the fine-print somewhere. The big thing is to file the RTI application in such a way that it stays on their records as well as on the records of the known public authorities that they come under. As a strategy, to achieve something by commencing an organic process that winds its way up slowly and surely, this is unbeatable.
A few months ago I came across a few media reports, here is one: http://www.telegraphindia.com/1110420/jsp/orissa/story_13877351.jsp... and the relevant part that caught my eye was this: “Posco India has so far spent Rs3,000 crore in its proposed steel plant near Paradip”... but the other interesting part was here—“Sources said Posco India has so far given direct employment to 53 persons and indirect employment to 20. The state has got Rs4.41 crore as taxes from the project”.
Some more searching, and it turns out that this number was also being used in context with the state visit of South Korea’s president Lee Meung Bak and the potential $19 billion investment in Odisha for iron ore mining and transport onwards, a figure which kept varying with different reports. All these big numbers, of course, were placing pressure on the central and state government to move rapidly in a direction—the export of natural resources which could better be used internally for domestic production—which was eminently flawed.
But who does one send an RTI query to in such cases?
The answer is simple.
1) An opening RTI application of a general sort, where more details for information of the real numbers behind the project, are sought from the office of the prime minister of India.
2) The next RTI application of a specific sort, seeking information on taxes paid in the course of spending so much money, ongoing and proposed, are sought from the office of the Central Board of Direct Taxes (CBDT).
3) And finally, the really tricky one, is two separate RTI applications containing the same queries for more specific and detailed information, are sought from the office of the Planning Commission and directly from the office of the Indian subsidiary of the company itself, in this case, Posco-India Private Limited, 116, Park Centra (1st floor) Tower-B, Opposite 32nd Milestone, NH-8, Sector-30, Gurgaon-122001.
Here is a copy of the RTI application that I sent to Posco.
Requesting information under the RTI Act of India, 2005, please provide me with the following information. THIS INFORMATION IS SOUGHT IN THE PUBLIC INTEREST, AND THERE IS OVER-RIDING PARAMOUNT LARGER PUBLIC INTEREST TO BE GIVEN THE INFORMATION I HAVE ASKED FOR.
a) Please provide me with full information pertaining to adherence of Posco-India Pvt Ltd to the RTI Act of India 2005.
b) Please provide me with full information pertaining to the various taxation adherences and status of Posco and/or their Indian subsidiary Posco India Pvt Ltd claiming that they have spent Rs3000 crore in India so far and if CBDT has any information on this heavy expense. (Source: Media report per: http://www.telegraphindia.com/1110420/jsp/orissa/story_13877351.jsp quote:
“Bhubaneswar, April 19: Posco India has so far spent Rs3,000 crore in its proposed steel plant near Paradip though the project still remains stuck with the company yet to take possession of even an inch of land at the site. The company’s investments came to light during an ongoing review meeting chaired by steel and mines minister Raghunath Mohanty.”
c) Please provide me with full information on expenses incurred by Posco and/or their Indian subsidiary Posco India Pvt Ltd on any travel/junket or other expenses on Indian officials, journalists and other people not connected with the day-to-day regular work of Posco and/or their Indian subsidiary Posco India Pvt Ltd.
d) If any of the above said statutory records are not available, the complete details of how it was destroyed/weeded out in each case.
e) Electronic access to the catalogue (or catalogues) of all records of your public authority duly indexed in a manner and the form to facilitate right to information, either over the computer networks or in the form of a diskette or other electronic media at the prescribed fees.
Sent by e-mail and signed hard copy, self-verified, (signed) and humbly submitted,
From: V Malik,
D-61, Defence Colony,
New Delhi - 110024
Note 1. Application fee of Rs10 in cash shall be submitted within 30 days as per procedure laid down by DoP&T at PIO, Posco India Pvt Ltd, New Delhi, or at any one of the nominated APIOs located at the specified Post Offices in India, and a copy of this application along with receipt shall be sent to you co-terminus. Interim, you are requested to commence processing this RTI application as per the RTI Act, 2005 with effect from date of submission of this electronic copy, also as per the RTI Act, 2005.
Note 2. The public authority, Posco India Pvt Ltd, Gurgaon, has not yet published their arrangements to accept/accompany electronic payments for e-filings as per Section 6 of the Information Technology Act, 2000, is requested to do same, and hence I am constrained to go to extra expense/trouble to file a routine email request by Postal Department also.
Note 3. I wish to specify that you may please not provide to me that information (or particular portion thereof) which would impede the prosecution of offenders under any law of India, and also any personal information which is unconnected with any public activity/interest or which invades the privacy of any person. THIS INFORMATION IS SOUGHT IN THE LARGER PUBLIC INTEREST, AND THERE IS OVER-RIDING PARAMOUNT LARGER PUBLIC INTEREST TO BE GIVEN THE INFORMATION I HAVE ASKED FOR.
Note 4: Humbly also submitted that section 8(2) of RTI Act clearly mentions that “A public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests”. In present case even section 8(1) (j) is applicable for the information sought. Also it leaves no scope to invoke section 11 of RTI Act for seeking ‘third party’ comments. However since various CIC verdicts allow protection in form of hiding certain information likely to be misused, bank details etc in the sought information may be hidden by putting a whitener on the relevant portions of the documents to be provided. In case RTI petition relates to some other public authority, please transfer this RTI petition to CPIO there under section 6(3) of RTI Act.
(Postal-order number __________________ _______________ for rupees ten is enclosed with signed hard-copy towards RTI fees in name of “Accounts Officer” as per DoPT circular-number No.F.10/9/2008-IR dated 05.12.2008.)
In essence, there is no way that Posco could not accept this RTI application, because it was sent by registered post using the “via Post Office” and transfer under Section 6(3) method, and that is step-1. The parallel application to the Planning Commission and PMO and CBDT is step two, and was done so that the information sought comes on record, and also if at a later date if a scam is uncovered, then it will be fairly correct to assume that the Planning Commission, PMO and CBDT would have by then further moved the application to ALL the public authorities concerned. The Planning Commission and PMO also have enough information on record pertaining to not just about the central government, but also the state governments and other entities which do not come under the central act, but come under their own state acts—which makes things difficult for us.
This has the effect of putting everybody on their guard, flags come up at every point along the line where anything wrong may even remotely have been done, and all questions lead back to the company—in this case, Posco India. By the end of it, even Posco knows that it would be in their interest to provide a response to the application, either directly or through any of the central government public authorities, as not providing one will certainly lead to even more complications with the various government public authorities now asking the same questions.
Which is what happened. After all the RTI applications went around, the eventual result was that Posco as well as other entities involved in this episode declared that the Rs3,000 crore figure was an incorrect one, and the real figure was only Rs300-odd crore. Maybe not even that much.
What did one achieve by this?
Perception is often used to confuse the truth. By throwing around huge numbers as promised foreign investment and benefit to the nation, a situation is created where any opposition to these projects is considered to be anti-national, and the complete public relation exercise swings into play. The repeated tom-tomming of the Rs3,000 crore number had the result that the promoters wanted—it motivated all sorts of dynamics to help the project along. The reality was that a pittance had actually been spent by the company, more had probably been spent by various arms of the government using our taxes to prop this game along, and what was essentially in some ways a hoax became truth by repetition.
If you are faced with a similar situation, where a wall of denials is placed in front of you by assorted entities including private companies which have been suitably financed by the government or state/city governments think of this tactic. File RTIs on the PMO and Planning Commission, and wait for results. There is no large project in this country by the private sector which can say it has not received substantial government aid in some form or the other. Remember, subsidies, waivers of tax, loans from government sector financial institutions like insurance companies and PSU banks—make a private company come under the “substantially financed” category for RTI purposes.
Whichever way you look at it, solar energy back to grid which is now economically feasible in India even on a 1:1 basis, but is simply not going to move forward because of the lobbying involved in seeing that it does not happen
Experimenting with solar energy has fascinated me since first noticing photo-voltaic cell panel clusters on rooftops in Japan—way back in the late eighties. Driving through a small town en route to join ship at Kashima (a major port in Honshu, recently badly damaged by the tsunami) in 1982, I asked the driver for more information on this, and like all helpful Japanese people he stopped at the next house which had a solar panel on its roof, rang the bell, did the complete exchange of greetings routine with the house-owner, and then got us invited in for a grand tour of the solar facility—of course, we had to take our shoes off and sit on the ground to drink tea with the family, first. Turned out that the owner was a very senior engineer at the steel factory to which the ship I was about to join was delivering a couple of hundred thousand tonnes of coal, was waiting for the workmen’s bus, and so he rode with me till the factory, which was part of the integrated facility that included the port where my ship was berthed.
As seafarers, we generate our own electricity on board ships, and lots of it. Apart from keeping the main engines turning, we need vast amounts of power for cranes, auxiliaries of all sorts, winches, lighting and back-up to provide power for shore supply in ports which don't have power. (Oh yes, there are plenty of them worldwide, where ports don't have electricity, and depend on the ship’s supply.)
It was obvious that the house-owner and the driver were both very proud of the way solar energy was entering the alternate energy space in Japan. As a nation which depended completely on imported oil and coal, brought in on ships operated by people like me, they were very clear even way back then in 1982 that the way forward was through renewable and alternate energy sources. Pollution control was the other reason, and the fact that their beloved national symbol, the venerated Mount Fuji, was in those days surrounded by a yellow-brown-grey smog at all times, had seriously impacted the Japanese psyche. Not being able to see Mount Fuji from a distance was like not being able to see God, I was told, and they had to all work together to fix this. It was like a ‘dharma’, in national interest, to do this.
In this case, the power generated was fed back into the electricity grid, for which the house-owner received, in 1982, a credit of about 1.25 times the power generated. This credit was applied to his monthly power bill, and more than all the monetary benefits which were inflation free, sent a very strong message to the younger generation on saving wastage of power too. The householder, on the other hand, did not have to build up storage facilities (battery banks) for power generated and the billing process even then was automated by a variation of what we knew in India as “PO Meters”, then used in crossbar telephone exchanges. The design for those PO meters, by the way, was from an Indian public sector company called ITI—which had further in its turn improved on a design from Czechoslovakia.
Countries in those days were constantly ‘borrowing’ designs from each other to get ahead with their own manufacturing. This was the case with ship-building, also, incidentally—as well as anything else, from nuclear reactors to steel plants to power projects to match-boxes, cycles and furniture. The concept of placing a subsidiary in position which did end-to-end work in another country was considered not to be in national interest then, and IPR (intellectual property right) was considered to be a colonial tool to keep people in economic slavery, which we are seeing happen all around us now. The era from the end of the 2nd World War till about 1980 was considered to be the golden years for this sort of an approach between countries—you liked something new in another country, you visited them, asked for the designs, got them, and did your best to replicate them back home. From PCBs to pharmaceutical formulations, from dams to shipyards, these were the glory years.
Long and short of this report is that even then, the Japanese, now paying the price for the Fukushima nuclear reactor, were taking steps to not just fix the known environmental issues by moving into different methods of producing power which did not involve fossil fuels, but were also simultaneously running a bottom up ultra micro power generation effort, ably supported by the state. Those days, the technology for this came from Germany, largely.
Today, Japan has about 6000+ MW of ultra-micro solar generated power linked to the grid. They hope to triple this number in the next three years. The utilities back on a 2:1 basis, for every unit generated, the household or office building gets a credit of two units. Commercial generation of power from offshore facilities like “solar arks” anchored offshore which link to power grids are seen all over the coast as you sail in on ships. Public covered spaces have solar panels on the roof and the sides. And this does not include standalone solar power units like portables of all sorts.
By contrast, the complete Enron project in India was supposed to reach 2000MW, in its final phase. The equivalent real number on grid linked solar power for India, with far more sunny days and need of power now, is between 10MW and 30MW, as on December 2010. A mid-sized naval ship generates more. The solar policy for India is still being debated in Delhi, though Gujarat and Rajasthan have made their own state policies and implemented them, Bihar is reportedly about to announce it on the Gujarat pattern, Karnataka is about half-way there on its own pattern, and Rajasthan has one that is operating de-facto on the Gujarat pattern but is still to be closed out.
The absence of a true solar policy at national level and in most of the states has simple reasons—it puts to risk a complete stream of big business inertia levels—from import of oil and coal to transporting them to construction of power plants to distribution and finally to the money made in transmission as well as the typical 50%+ transmission losses. In addition, it is not incorrect to assume that the budding high growth private healthcare business in India will suffer if the air we breathe becomes cleaner. Some people even say that the livelihood of the political system depends on this, now that cricket has withered away, and other industries are in recession. You go to any renewable energy seminar or exhibition, and you see all the big names present there, but you ask them for real life products, you are asked to climb a wall.
Whichever way you look at it, solar energy back to grid which is now economically feasible in India even on a 1:1 basis, is simply not going to move forward because of the lobbying involved in seeing that it does not happen. This is a real tragedy, seeing the potential India has, and the ever-increasing cost of fuel, dollar and healthcare. It is easy to curse cars and bikes for air pollution, but why don’t we also see the realities due to power generation?
So back to anecdotal to help close this essay. A few months ago, we were changing the “meter box” at our family home and an inspection by the electrical utility in Delhi needed to be undertaken. The engineer in question, a fine young man, did his job impeccably. We got speaking, and he opened up, small town boy from a part of the country where I had spent some years making his way in the big bad city. He then noticed the small solar panels hanging on the front wall, which power up our emergency lights as well as a few night lamps, on a stand-alone basis. And then he told me something—if I was generating electricity, I could be penalised for not keeping a record of how much I was generating, and then not paying a tax on it to my Delhi Government. And he was supposed to report it.
Another time, the MCD appointed busybodies who are supposed to keep an eye on illegal construction and mosquitoes and that sort of thing, but actually wink at them, and one of them rang the bell. He wanted to know more about why I was generating electricity using the solar panels, which can be seen from the street, and wanted to come and take a look. I told him to do his worst, and showed him his mobile phone and wrist-watch, and asked him why he was generating electricity—an extreme example, but it had him flummoxed as he walked away.
The numbers are simple—per back of the envelope calculations on date, till a particular price point, say around Rs18 to Rs20 per unit, solar power starts making sense if the home rooftop model is not linked back to the grid. If it is linked back to the grid and the return to the entity generating solar power is done on a 1:1 basis, it has started making economic sense already, at around Rs8 a unit. But there is now a midway number, closer to the lower end, for people who already have inverters at home, and can use those batteries as storage, as well as the controller for prioritising the consumption of the solar energy when grid power is also present.
The truth on the ground is that the real solar power revolution in India will have to take place ground up. This is clear after talking to a large number of people who are in this line on the subject. Not just because of the difficulty in hooking power generated back to the grid, but because of the lack of a clear policy and rules as well as legislation on the subject, and the sheer power of the inertia levels against it. To even try to levy a penalty on presumed power generation because one has a solar panel at home, and there may be some archaic laws which back this sort of an attitude, is anti-national in this day and age of rising fuel prices and dropping rupee value.
Start generating solar power at home, visible to all, and that will be the only way to take this forward. And if anybody threatens you with prosecution on this, please write to us.
(Veeresh Malik started and sold a couple of companies, is now back to his first love—writing. He is also involved actively in helping small and midsize family-run businesses re-invent themselves.)