Skip to main content

Commercial confidence? NHPC refuses to reveal why it returned J&K hydel projects

By Venkatesh Nayak*
Readers will remember my RTI intervention circulated in April 2016 about the National Hydroelectric Power Corporation’s (NHPC’s) refusal to disclose information about the return (and not buyback) of hydel projects in Jammu and Kashmir (J&K). NHPC is a profit-making public sector enterprise under the Government of India (GoI) and runs several hydel projects across the country. Earlier this year, when I asked the Union Ministry of Power for all correspondence with the Government of J&K (GoJ&K) relating to these projects, the Ministry washed its hands off the issue by transferring the RTI application to the NHPC which is responsible for the execution, maintenance and management of these projects. NHPC invoked Section 8(1)(d) of the Central Right to Information Act, 2005 (Central RTI Act) claiming that disclosure would “affect” its commercial interests.
Later on I submitted a first appeal to the NHPC’s First Appellate Authority (FAA) contesting the reply of the Central Public Information Officer (CPIO) on various substantial and technical grounds. I argued that NHPC cannot claim for itself the status of second party (being the custodian of the requested information) and also a “third party” whose commercial interests would be affected. This argument is absurd in law.

NHPC’s First Appellate Authority parrots the CPIO’s decision to reject access to all information

The NHPC’s FAA has done an encore of the CPIO’s performance by upholding the decision to reject access to all information held by them about the correspondence with GoJ&K. Not only has he refused to apply his own mind to the case, instead, he has relied completely on the opinion of the deemed CPIO [under Section 5(4) of the Central RTI Act] who is the custodian of information to uphold the rejection. The FAA has ruled in my case as follows:
“I have carefully examined the appeal viz-a-viz correspondence made between the CPIO, the deemed PIO and the appellant and it has been observed there is no denial in providing information as per the Act. The reply as supplied by the Planning Division, Corporate Office being deemed PIO as per Section 5(5) of the RTI Act vide their IOM no. NH/PD/RTI/703 dated 16/03/2016, has been furnished to the applicant by CPIO, NHPC vide letter no. NH/RTI/186/2016/2817-17 dated 17/03/2016. It has also been observed that the deemed PIO resorted the exemption under Section 8(1)(d) of RTI Act being information related to commercial confidence, which was however inadvertently typed as Section 8(d) instead of Section 8(1)(d) of the RTI Act, 2005.
“The appeal forwarded to Planning Division, Corporate Office with the request to review the information/reply provided against his application and offer comments on the appeal, vide IOM no. NH/RTI/Appeal/25/2016/224 dated 29/04/2016. Responding to the same, deemed PIO i.e, Planning Division replied vide their IOM no. NH/PD/RTI/1105 dated 10/05/2016 that ‘NHPC is a Central Public Sector Undertaking (CPSU), it is a listed company in the stock market’. The information sought by the applicant is sensitive and directly related to the business of the company. Also, the issue is between the parties MoP/NHPC & GoJK. The disclosure shall lead to unwarranted speculations and confusion among the shareholders and shall affect the commercial confidence of NHPC. The disclosure of such information affecting the commercial confidence is eempted in terms of section 8(1)(d) of RTI Act, which says that:
“Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information”.

What is problematic with this order?

There are several problems with this order. First, the FAA has simply not appreciated the fact that the protection of Section 8(1)(d) of the Central RTI Act is not available to the NHPC. It could have been legitimately claimed by the Union Power Ministry if it had disposed the RTI application on its own. Then NHPC would have become a third party to the case (because the Union Power Ministry would have been the 2nd party, namely the Respondent Public Authority). The FAA has simply not recognised the fallacy in the CPIO’s reply while upholding it.
Second, the FAA has claimed that NHPC being a listed company, whose stocks are traded in the stock exchange, its shareholders would be confused if details of the correspondence between GoI & GoJ&K were to be released in the public domain.
In fact, the confusion is created by the contradictory statements made by authorities under the GoI. In March 2015, the Union Minister of State for Power replied to a question raised in the Lok Sabha by Jenaab Tariq Hameed Karra, MP elected from Srinagar, stating that the Government has not accepted the Task Force’s recommendation of return of projects. The Minister replied as follows:
“The Task Force on the development of Jammu & Kashmir recommended transfer of certain Power Projects of NHPC including Dulhasti Hydroelectric Project (HEP) to State Government. The recommendation was considered by the Union Government and not accepted as the power generated from the project has already been allocated to various States including J&K. Also the transfer of the project is likely to entail considerable financial, non-financial and legal problems.”
The RTI reply I received earlier this year from NHPC and now the FAA’s order indicate that the issue has not been resolved yet. So the confusion is created by the official secrecy that is plaguing the discussions. The confusion can be cleared up by disclosing information relating to the correspondence between GoI and GoJ&K.

What is the shareholding pattern of NHPC?

The NHPC’s stocks are listed on the Bombay and National Stock Exchanges according to its Annual Report for 2014-15 (page 46). According to documents uploaded for the financial quarter ending in March 2016 on the NHPC website, the Hon’ble President of India i.e., the Central Government holds 85.96% of the shares of NHPC. Thanks to disinvestment over multiple phases, the remaining shares of NHPC are held by the following:
1) Individual shareholders – 6.22%
2) Life Insurance Corporation of India – 3.44%
3) Foreign Portfolio Investors – 2.59%
4) Financial Institutions and Banks – 0.83% (the quality of the scanned document put up on NHPC’s website does little justice to its status as a hugely profitable company flush with funds)
5) The remaining shares are said to be held by NBFCs registered with the Reserve Bank of India, one foreign national and one foreign corporate body. 4,739 NRIs are amongst the individuals shareholders of NHPC.
However, neither the NHPC’s Annual Reports nor the public documents available on MCA21 (Union Ministry of Corporate Affairs’ official website for corporations and Limited Liability Partnerships) list the names of individuals who own the share of NHPC.
According to data obtained through another RTI intervention of mine earlier this year, NHPC earned Rs. 194 billion from sale of power generated at the 7 hydel projects in J&K over a period of 14 years from 2001-2015. Of this total amount, Rs. 41 billion was paid by J&K to NHPC for consuming power within the State. 12% of the remaining power generated in J&K was supplied free of charge to J&K as per the MoU signed in July, 2000. NHPC provided a copy of this MoU also under the Central RTI Act earlier.
It would be interesting to find out how many residents of J&K or NRIs of Kashmiri origin are shareholders of NHPC in the “Individuals” category. I am requesting readers to submit RTI applications to NHPC and Bombay Stock Exchange, National Stock Exchange and SEBI to obtain this data.

Why is transparency of negotiations important?

Third, after the media in J&K went to town about the amount of revenue that NHPC had earned in J&K (J&K accounts for 40% of the power generated by NHPC at its hydel projects across the country) thanks to the RTI intervention, the issue of return of projects – an essential clause in the 2000 MoU signed between GoI and GoJ&K was debated widely across J&K. Political leaders and civil society called for an urgent discussion on the return of the projects as the MoU between GoI and GoJ&K regarding the 7 hydel projects in J&K was for a 10 year period only. Only when the authorities such as NHPC and GoJ&K place more information about the discussions in the public domain, will people be able to debate the issue in a more informed manner. In a democracy government has the duty to take the people into confidence by being transparent.
When the current Chief Minister of J&K Ms. Mehbooba Mufti, raised a query as a member of the Lok Sabha in August 2014 about the amount of revenue generated by NHPC projects up to 2013-14, the Union Minister of State for Power assured her that the information was being collected. It is not clear whether the information was supplied to her eventually or not. Now as the Chief Minister of the State, she can obtain this information easily. In any case the NHPC provided this data in response to my RTI application which is in the public domain. The J&K State Government can do better than NHPC and publicise the official records its holds about the correspondence with GoI concerning the return of the hdyel projects. Now that the J&K Legislature is in session, I hope the political leaders supported by civil society actors will demand transparency from the State Government.
If, perchance, the State Government is also unwilling to volunteer this information, concerned citizens and RTI activists in J&K can seek this information from the State Government under the J&K RTI Act. Being an outsider, I am not permitted to seek information under the J&K RTI Act, which is an irony. Readers may suitably adapt the RTI queries from my application and use them in J&K.
When the issue of return of projects has always been a matter of public debate in J&K, NHPC’s contention that disclosure of details of the correspondence between GoI and GoJ&K does not sound very convincing. After all, NHPC being a primary beneficiary of the exploitation of the water resources in J&K has a greater duty to the people of J&K vis-a-vis transparency as compared to the duty it is performing towards its shareholders by maintaining secrecy.
Further, almost 90% of NHPC’s shares are controlled by the Central Government directly and through LIC. So it should not be difficult for NHPC to take measures to explain the issue to 10% of its public shareholders and make way for more transparency about the discussion on the return of the hydel projects. If the inclination towards transparency is there, practicing it will not be difficult.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Comments

TRENDING

Loktantra Bachao Abhiyan raises concerns over Jharkhand Adivasis' plight in Assam, BJP policies

By Our Representative  The Loktantra Bachao Abhiyan (Save Democracy Campaign) has issued a pressing call to protect Adivasi rights in Jharkhand, highlighting serious concerns over the treatment of Jharkhandi Adivasis in Assam. During a press conference in Ranchi on November 9, representatives from Assam, Chhattisgarh, and Madhya Pradesh criticized the current approach of BJP-led governments in these states, arguing it has exacerbated Adivasi struggles for rights, land, and cultural preservation.

Promoting love or instilling hate and fear: Why is RSS seeking a meeting with Rahul Gandhi?

By Ram Puniyani*  India's anti-colonial struggle was marked by a diverse range of social movements, one of the most significant being Hindu-Muslim unity and the emergence of a unified Indian identity among people of all religions. The nationalist, anti-colonial movement championed this unity, best embodied by Mahatma Gandhi, who ultimately gave his life for this cause. Gandhi once wrote, “The union that we want is not a patched-up thing but a union of hearts... Swaraj (self-rule) for India must be an impossible dream without an indissoluble union between the Hindus and Muslims of India. It must not be a mere truce... It must be a partnership between equals, each respecting the religion of the other.”

Right-arm fast bowler who helped West Indies shape arguably greatest Test team in cricket history

By Harsh Thakor*  Malcolm Marshall redefined what it meant to be a right-arm fast bowler, challenging the traditional laws of biomechanics with his unique skill. As we remember his 25th death anniversary on November 4th, we reflect on the legacy he left behind after his untimely death from colon cancer. For a significant part of his career, Marshall was considered one of the fastest and most formidable bowlers in the world, helping to shape the West Indies into arguably the greatest Test team in cricket history.

Andhra team joins Gandhians to protest against 'bulldozer action' in Varanasi

By Rosamma Thomas*  November 1 marked the 52nd day of the 100-day relay fast at the satyagraha site of Rajghat in Varanasi, seeking the restoration of the 12 acres of land to the Sarva Seva Sangh, the Gandhian organization that was evicted from the banks of the river. Twelve buildings were demolished as the site was abruptly taken over by the government after “bulldozer” action in August 2023, even as the matter was pending in court.  

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah  The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

Will Left victory in Sri Lanka deliver economic sovereignty plan, go beyond 'tired' IMF agenda?

By Atul Chandra, Vijay Prashad*  On September 22, 2024, the Sri Lankan election authority announced that Anura Kumara Dissanayake of the Janatha Vimukthi Peramuna (JVP)-led National People’s Power (NPP) alliance won the presidential election. Dissanayake, who has been the leader of the left-wing JVP since 2014, defeated 37 other candidates, including the incumbent president Ranil Wickremesinghe of the United National Party (UNP) and his closest challenger Sajith Premadasa of the Samagi Jana Balawegaya. 

Will Bangladesh go Egypt way, where military ruler is in power for a decade?

By Vijay Prashad*  The day after former Bangladeshi Prime Minister Sheikh Hasina left Dhaka, I was on the phone with a friend who had spent some time on the streets that day. He told me about the atmosphere in Dhaka, how people with little previous political experience had joined in the large protests alongside the students—who seemed to be leading the agitation. I asked him about the political infrastructure of the students and about their political orientation. He said that the protests seemed well-organized and that the students had escalated their demands from an end to certain quotas for government jobs to an end to the government of Sheikh Hasina. Even hours before she left the country, it did not seem that this would be the outcome.

A Marxist intellectual who dwelt into complex areas of the Indian socio-political landscape

By Harsh Thakor*  Professor Manoranjan Mohanty has been a dedicated advocate for human rights over five decades. His work as a scholar and activist has supported revolutionary democratic movements, navigating complex areas of the Indian socio-political landscape. His balanced, non-partisan approach to human rights and social justice has made his books essential resources for advocates of democracy.

Tributes paid to pioneer of Naxalism in Punjab, who 'dodged' police for 60 yrs

By Harsh Thakor*  Jagjit Singh Sohal, known as Comrade Sharma, a pioneer of Naxalism in Punjab, passed away on October 20 at the age of 96. Committed to the Naxalite cause and a prominent Maoist leader, Sohal, who succeeded Charu Majumdar, played hide and seek with the police for almost six decades. He was cremated in Patiala.