The Indian Express: New Delhi: Thursday, July 27, 2017.
The piece of
land on which Tailin Lyngdoh was sitting on June 25 when she was allegedly told
her Khasi jainsem resembled the attire of a “maid”, had been valued at roughly
Rs 46,722 crore four years ago. The Delhi Golf Club will pay an annual
rental/licence fee of Rs 5.82 lakh for the 179 acres it occupies on Dr Zakir
Husain Marg until 2020. The DGC has requested a 50-year extension of its lease,
until 2070.
Golf returned
to the Olympics in 2016, and the DGC claimed its facilities would be crucial to
the country winning medals, and it would become the focal point of the Tourism
Ministry’s thrust to promote golf tourism. DGC boasts an 18-hole Lodhi Course
and a 9-hole Peacock Course.
The question
civil society activists have been asking since the Tailin Lyngdoh incident is:
given that DGC cannot probably survive without government benevolence, does this
not make it a ‘public authority’? And, if that is the case, how can it have
rules that are essentially unconstitutional?
The answer to
the first question came from the Central Information Commission in an order
from August 2013. It held the DGC to be a “public authority u/s 2(h) of the RTI
Act”. However, the definition of what constitutes a ‘public authority’ was
complicated by an order of the Supreme Court a little over a month later.
First, the
CIC order. On August 30, 2013, Information Commissioner M L Sharma, ruling on
an appeal against the DGC’s refusal to reply to questions put to it by RTI
activist Subhash Chandra Agrawal under the RTI Act, said he had “no hesitation
in coming to the conclusion that the prime chunk of land has been leased out to
DGC at a pittance” and “it is a clear case of indirect financing of DGC by the
Central Government u/s 2(h)(d)(i) of the RTI Act.”
“I,
therefore, hold DGC to be a public authority under this provision, on this
ground alone,” Sharma said.
Under Section
2(h)(d)(i) of the RTI Act, a ‘public authority’ includes “any body owned,
controlled or substantially financed… directly or indirectly by funds provided
by the appropriate government”.
The CIC order
noted that even nominal control amounts to control as per the statutory
provision. Therefore, Sharma said, “The presence of senior government officers
in the Management Committee of DGC contemplated in clause 21(i) of the
Confirmation and Amendment Deed leaves no manner of doubt in my mind that
Central Government exercises reasonable amount of control over the affairs of
DGC.”
As per Clause
21, the DGC management committee shall have three nominees of the Urban
Development Ministry as ‘A’ category members; every fifth DGC member shall be a
government nominee with full voting rights; DGC will accept nomination of two
‘out of turn’ members every year as per the recommendations of the Ministry;
the Ministry can nominate up to 150 central government officers as tenure
members; and the Chief Justice of India and Chief Justice of Delhi High Court
can nominate 10 tenure members each.
Having
declared DGC a ‘public authority’, Sharma directed the president of the club
“to nominate an official as Central Public Information Officer and another as
an Appellate Authority within six weeks”.
However, DGC
maintained that since it is a registered company under the Companies Act, 1956,
it is not bound by the RTI Act. The matter is currently before the Delhi High
Court.
Venkatesh
Nayak, coordinator of the Access to Information Programme of the international
nonprofit Commonwealth Human Rights Initiative (CHRI), said “It makes no
difference as to which law facilitates your existence, the point is whether you
answer the criteria under the RTI Act.” What complicated matters, Nayak said,
was the 2013 Supreme Court order “which reversed the whole jurisprudential
trend of understanding what is meant by ‘substantially financed directly or
indirectly by the government’”.
On October 7,
2013, the court ruled that none of the criteria to deem a body as a public
authority would apply on their own, and changed the interpretation of what is
understood to be ‘substantial’. (Thalappalam Ser. Coop Bank Ltd & Others vs
State of Kerala & Others) As a result, a lot of the earlier jurisprudence
was set aside.
“Where
‘substantial’ was always counterposed with ‘trivial’ to make a determination,
the court said ‘substantial’ meant funding from the government of an order
without which the organisation would struggle to even survive,” Nayak said. The
court order read: “The word ‘substantial’ is not synonymous with ‘dominant’ or
‘majority’. It is closer to ‘material’ or ‘important’ or ‘of considerable
value’. ‘Substantially’ is closer to ‘essentially’.”
According to
Nayak, a larger public interest principle is at stake in this matter. “Bodies
like cooperative societies, the DGC, the Delhi Gymkhana, perform some sort of
public service. If not for the entire public, at least for a segment of the public,
whichever group meets the criteria for availing the facilities,” he said.
“Therefore, when they get support on account of that, it could be in the form
of land at cheap rates or tax exemptions, then there has to be some
accountability to the people because there is public land that is given.” In
the case of DGC, the driving force was the promotion of golf.
Lawyer and
writer Gautam Bhatia noted that “a debate arises when the entity might be
non-state, but performs a certain character that can be reasonably termed as
public. This gives them certain obligations under public law”. This is a debate
that India has not seen yet, Bhatia said.
Activists who
attach larger questions of inequity to the controversy ask why such a large
space in the heart of the capital should be accessible only to a minuscule
segment of society, especially when millions live with virtually no amenities.
They have demanded re-examination of rules across clubs, an exercise that they
say should involve a range of stakeholders including those who may not get
entry into those spaces.
Despite
repeated attempts, no officebearer of the DGC was available for comment.
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