New Delhi: In a Right to Information (RTI) query, activist Venkatesh Nayak has questioned the delay in returning hydel projects to Jammu and Kashmir, as was promised in a memorandum of understanding (MoU) between the Centre and the state in July 2000. He has also questioned the Central Information Commission’s (CIC) delay in his appeal and accused it of allowing NHPC Ltd, the ‘respondent’, to not respond to the query by treating it as a ‘third party’.
Nayak, who is a programme coordinator at the Commonwealth Human Rights Initiative, said that NHPC generates more than 40% of the hydel power from plants in Jammu and Kashmir. A bulk of its revenues come from these hydel projects. “While 12% of the power generated is supplied to Jammu and Kashmir free of cost, the state government is required to buy at commercial rates, between 19-20% of the power so generated by NHPC to meet local demands,” he said.
Secrecy around negotiations on return of projects
Noting that negotiations for the return of the hydel projects are being conducted in secrecy, Nayak said, “NHPC’s efforts to maintain secrecy about the negotiations contradict the repeated assertions of the Union Ministry of Power that the Central government had rejected the 2012 recommendation of the three interlocutors on Jammu & Kashmir to transfer Central sector power generating projects to the state”.
The interlocutors were appointed by the UPA government in 2010 to “identify the political contours of a solution and the roadmap towards it”, and two years later, had made multiple recommendations in their report for political, socio-economic and cultural confidence building measures in the state.
NHPC had asserted before the CIC that the negotiations are still going on, in support of their claim to Section 8(1)(d) of the RTI Act, Nayak said, wondering who then between the NHPC and the ministry was speaking the truth.
‘Modern-day East India Company’
He said while the ministry had claimed that the government has decided not to return the projects to Jammu and Kashmir, the least the NHPC could do was become “more transparent about these negotiations”. This way, Nayak said, NHPC would be able to shrug off the tag of ‘Modern-day East India Company’ given by its critics.
Nayak also argued that the return of the projects would make the state more self-reliant. He said that while Jammu and Kashmir’s dependency on “central financial support for survival” is often debated, it should be remembered that “all states in north India draw on the electricity produced by Jammu and Kashmir’s hydel projects. NHPC earns its profits from the power sold to these states. If even a portion of these revenues were to be rerouted to Jammu and Kashmir, the state’s dependence on the parliament for budgetary support would be reduced considerably.” This, he said, also appeared to be the basis of the interlocutors’ 2012 recommendation for returning hydel projects to the state.
CIC treated respondent as a ‘third party’
Nayak said that the CIC refused to direct NHPC to open up details of negotiations regarding the return of hydel projects it operates in Jammu and Kashmir, while treating the latter as a ‘third party’ and holding that information about the negotiations would fall under the category of ‘commercial confidence’ under Section 8(1)(d) of the RTI Act, 2005.
He said this treatment ran contrary to the law laid down by the Delhi high court in Virender Singh Dabad, in which the CIC’s decision to treat Air India as both a respondent and a ‘third party’ was challenged. The high court had set aside the decision of the CIC, Nayak said, adding that “the CIC is duty bound to follow this precedent instead of the patently erroneous interpretation that it has been dishing out in multiple cases”.
Need for intervention
In April 2016, an RTI query revealed that NHPC had earned more than Rs 194 billion (almost $3 billion at current exchange rates) by selling electricity generated from the rivers of Jammu and Kashmir between 2001-2015. Following this, Nayak said he had filed a plea asking for details in the matter. In its response, NHPC had supplied a copy of the MoU that the state government had entered with the Centre and which was signed by then chief minister Farooq Abdullah and Union power minister P.R. Kumaramangalam.
The pact stated that seven hydel projects – Kishanganga, Uri-II, Bursar, Sewa-II, Pakal Dul, Nimmo Bazgo and Chutak – would be transferred to NHPC for a period of ten years for funding, execution and operation. Both the state and the Centre had also agreed that they would work out a mutually “acceptable methodology” for handing over these projects back to Jammu and Kashmir separately.
“Although the media in Jammu and Kashmir and elsewhere had been talking about ‘buyback’ of these projects, the MoU only talks about ‘handover’ of these projects to the state,” Nayak said.
Proceedings in the case
The Central Public Information Officer (CPIO), in his reply, named only an exemption, without explaining how disclosure would negatively affect public interest. Nayak said that following his first appeal, the first appellate authority (FAA) had given a more detailed order, saying that as NHPC was a listed company, the information sought was sensitive and “disclosure would lead to unwanted speculations and confusion among shareholders” and “affect the commercial confidence” of NHPC. Thus, they too had taken refuge in Section 8(1)(d) of the RTI Act.
Nayak then filed a second appeal in July 2016. In this, he had insisted that NHPC, being the recipient of the RTI application by way of transfer from the Union power ministry under Section 6(3) of the RTI Act, could not claim to be the ‘third party’ in the same case. He also noted:
Almost 90% of the shares of NHPC were held by the president of India and public financial institutions and so, it was not tenable to hold that the disclosure could not have led to speculation as there were simply not enough shares freely available for trading.
Nayak had also argued that the issue of return/buyback of the hydel projects was an emotive issue that was widely discussed in Jammu and Kashmir and across the country and so, there was immense public interest in favour of disclosure.
However, he said, in its order on October 9, the CIC only cited some of his arguments without making any effort to balance them against NHPC’s claim of confidentiality. Moreover, he said, the CIC also did not rule on the public interest angle and maintained a strange silence about the application of Section 8(2) which authorises it to direct disclosure of even exempt information in the larger public interest.
Finally, he complained that the CIC had also ignored the Delhi high court’s ruling, but quoted a 2009 full bench decision (in the matter of Milap Choraria vs Central Board Of Direct Taxes), where the board, the respondent public authority, was treated as a ‘third party’ in its own case and access to information was denied.