Readers may be aware of a joint venture project between India and Sri Lanka that has been designed to enable the construction, operation and maintenance of a coal-based power project in Sampur in Trincomalee in northern Sri Lanka. The 2x250=500MW power project is to be constructed by the Trincomalee Power Corporation Ltd. which is a joint venture company (JVC) set up by India's thermal power giant - NTPC and the Ceylon Electricity Board (CEB) with 50:50 equity partnership.
According to several media reports, local residents have been demonstrating against the project. In June 2014, an alumnus of our Right to Information Learning Programme requested me to seek information about this power project as it was likely to cause major displacement of thousands of families living in the area. I submitted an RTI application to NTPC which is a public authority under India's RTI Act, 2005, seeking the following information:
"1) A list of all records including documents held in electronic form, in relation to the said project; and
2) The following documents in relation to the said project:
a) Joint Venture Agreement;
b) Implementation Agreement;
c) Board of Investment Agreement;
d) Land Lease Agreement;
e) Coal Supply Agreement; and
f) Power Purchase Agreement (PPA)."
I demanded that all this information be uploaded on the website of the NTPC so that people may have easy access to the information. Foreseeing that NTPC was likely to reject request by invoking some exemption or the other under the RTI Act, I mentioned two public interest grounds as to why this information should be in the public domain. Section 8(2) of India's RTI Act permits a public authority to disclose information in the public interest despite the fact that it may attract any of the exemptions. A similar provision is included in Sri Lanka's RTI Bill that is currently tabled in Parliament. The RTI application is at page 1-2.
The Public Information Officer rejected the RTI application entirely, claiming that they were covered by "commercial confidence" which is a recognised ground for rejecting disclosure under Section 8(1)(d) of India's RTI Act. The First Appellate Authority upheld the rejection when I challenged it before him. These orders are at pages 3-6 of the 2nd attachment. In December 2014, I submitted a 2nd appeal before the Central Information Commission (CIC). The CIC decided the case in February this year. While I was able to attend the first hearing scheduled in this case in January, the CIC failed to send me notice of the final hearing to my latest postal address despite receiving an intimation from me about change of address by email. So I got to know of the decision only when I checked up the website (CIC's decision is on pages 18-23.). These technicalities aside, the CIC ordered that only a synopsis of the Sampur Power Project may be provided and the remaining documents be keep under wraps due to the application of the "commercial confidence" clause. The order is hugely problematic and my concerns are listed at the end of this email alert. The synopsis that NTPC has provided pursuant to the CIC's order reveals some interesting details about the Sampur power project.
Main points about Sampur project emerging form the synopsis
1) 500 acres of land in Sampur is under the physical possession of the Trincomalee Power Corporation. Ltd. (TPCL)
2) TPCL submitted its Environment Impact Assessment Report to the Central Environment Authority in February 2015. The report is under consideration and the environment clearance is awaited. It was awaited on the date on which the CIC decided this case.
3) India extended a line of credit of USD 200 million to Sri Lanka in 2010 for construction of a jetty and a transmission line apart from equity contribution to CEB for theJVC, namely, TPCL.
4) CEB will nominate a non-executive Chairman for TPCL while NTPC will nominate its Managing Director. This arrangement will continue for the initial 8 years (presumably from the date of inception of TPCL). Subsequently, the post of the Chairman will be held by nominees of NTPC and TPCL by rotation for a period of 3 years each. So this arrangement may come into force from September 2019 if the period is calculated from the date of incorporation of TPCL.
5) There must be a minimum of six directors on the board subject to a maximum of 15 members.
6) CEB is responsible for getting all approvals for the project in Sri Lanka, provide TPCL all information necessary for getting approvals and also pay its equity share in a timely manner.
7) NTPC will be responsible for getting all necessary approvals in India, pay its equity share in a timely manner and provide TPCL consultancy services for the overall development and implementation of the project. It is not clear as to whether these consultancy services will be provide free of charge or not.
8) NTPC and CEB will endeavour to promote the business of TPCL to the best of their ability.
9) Fuel for the projects is said to be "imported coal" and Lanka Coal Company Ltd. is required to supply 2 MTs of coal every year.
10) 100% of the energy generated by the project will be purchased by CEB for consumption in Sri Lanka. (Not being aware of this requirement due to paucity of information in the public domain, I had wrongly claimed in my RTI application that some of the power may be routed to India)
11) The 1st unit of the project is required to become commercially operational within 32 months from the date of Financial Closure which is likely to happen between 6-8 months after the grant of environmental clearance. The 2nd unit is required to become commercially operational within the next 4 months.
These portions from an agreement between NTPC and CEB about confidentiality is very interesting:
a) Neither party is allowed to publicise details relating to the agreement without prior consent of the other party unless such disclosure is required by law in India or Sri Lanka; and
b) All information received by either party and marked "confidential" shall not be disclosed to outsiders except stock exchanges. But the confidentiality clause will not apply to whatever information that is in the public domain or whatever may enter the public domain without breach of the confidentiality clause of the agreement. This confidentiality obligation will remain for a period of two years even if the agreement is terminated.
Lawyers amongst readers may like to examine the "Consequential Losses" clause in the agreement as I am not competent to comment on it.
Problem areas in the CIC's decision
NTPC failed to send me a copy of the synopsis despite intimation of change of address by email after the first hearing. So I was not able to rebut the objections to disclosure based on the "confidentiality clauses" before the CIC arrived at its decision at the final hearing. That part, the CIC has simply not paid adequate attention to the following issues in this matter:
1) When the confidentiality clause allows waiver of confidentiality if required under the applicable laws such as the RTI Act in India, why was that point not used to order disclosure of at least all categories of documents about the project held by NTPC. This kind of information is required to be proactively disclosed under Sections 4(1)(b)(vi) and (xiv) of India's RTI Act. The CIC simply failed to give a ruling on this issue even though I had explained the matter in detail at para #9.1.1 of my second appeal.
2) The CIC bought the argument of NTPC lock, stock and barrel that they had spent several "man hours" working on the project (not sure if any of their women employees worked on it), so it was a matter of "commercial confidence" fit to be held secret. NTPC is a public sector company in India with no other private sector competitor coming close to them in size and volume of power and revenues generated. CEB is a state agency in Sri Lanka with perhaps a near monopoly in its sector. So how anybody's competitive position will be negatively affected by disclosure of the agreements listed in the RTI application is a big question. I had not sought details of the technology that would be used for power generation. Disclosure of that information might have attracted the commercial confidence clause. But I never asked for that information. The agreements that I had sought are in NTPC's possession being a 50% partner in TPCL and also having its nominee as the Managing Director of the company. Nevertheless they refused to disclose the information.
3) In my 2nd appeal I had also pointed out the ruling given by the Supreme Court of India in the matter of Ram Jethmalani & Ors. vs Union of India [(2011) 8 SCC 1] famously known as the "black money case", regarding the superior position of the fundamental right of the people to know over confidentiality clauses contained in international agreements that India enters into:
"“70. Withholding of information from the petitioners by the State, thereby constraining their freedom of speech and expression before this Court, may be premised only on the exceptions carved out, in Clause (2) of Article 19, “in the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence” or by law that demarcate exceptions, provided that such a law comports with the enumerated grounds in Clause (2) of Article 19, or that may be provided for elsewhere in the Constitution.
71. It is now a well recognized proposition that we are increasingly being entwined in a global network of events and social action. Considerable care has to be exercised in this process, particularly where governments which come into being on account of a constitutive document, enter into treaties. The actions of governments can only be lawful when exercised within the four corners of constitutional permissibility. No treaty can be entered into, or interpreted, such that constitutional fealty is derogated from. The redundancy, that the Union of India presses, with respect to the last sentence of Article 26(1) of the double taxation agreement with Germany, necessarily transgresses upon the boundaries erected by our Constitution. It cannot be permitted.” [emphasis supplied]
Despite pointing this ratio decidendi in my 2nd appeal, the CIC did not even make a mention of this case in its decision in order to determine whether larger public interest in disclosure outweighed the harm to the protected interests of "commercial confidence". During the hearing NTPC even claimed that disclosure of more project details may harm Indo-Sri Lankan ties. NTPC is investing the taxpayers' money in the project which is meant for supplying power to the people of Sri Lanka. Surely, people in both countries have the right to know much more about the Sampur project than what the two partners and TPCL are willing to place in the public domain.
What readers can do in Sri Lanka for greater transparency about Sampur Power Project
I request readers in Sri Lanka to seek information about the Sampur Power Project using the fundamental right to information guaranteed under Article 14A of the Constitution. This case should also be an eyeopener for RTI advocates in Sri Lanka. Clause 5(1)(d) of the RTI Bill tabled in Parliament contains a provision that mirrors Section 8(1)(d) of India's RTI Act regarding "commercial confidence". This clause should not misused to prevent basic information about issues like power projects from flowing to the people. If not the people, who else are these power projects meant for? Second, Clause 5(4) of Sri Lanka's RTI Bill requires all information about inconclusive overseas trade agreements to be kept secret endlessly. The public interest override provision contained in Clause 5(3) does not apply to such matters. So this Clause will also be used to deny information about agreements being negotiated by Sri Lanka Government with foreign entities. It would be interesting to learn about the CEB/TPCL's response to formal information requests in Sri Lanka. Please keep me posted on your interventions in this matter.