Thursday, July 27, 2017

Beyond ‘racism’ controversy, a wider debate: In DGC row, question of rights, duties of a ‘public authority’

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.