Do we have a right to information? No, says MIB
Does the law entitle a citizen to know details of the shareholding and foreign ownership of a media company that is applying for a license to uplink? The Ministry of Information and Broadcasting (MIB) evidently does not subscribe to the idea of transparency in media ownership. Two years and three months, and three appeals later, the Central Information Commission (CIC) did not find any reasons to maintain secrecy and directed the MIB to provide the information free of cost.
Context
The number of news channels rose from 30 in 2005 to 387 as on May 2017. This sudden surge in 24x7 news broadcasting has led to many new entrants into media industry. In the past, The Hoot has compiled shareholdings of some of the major media organizations sourced from statutory filings and mandatory disclosures. In a continuing effort, to make media ownership more transparent, The Hoot set out to examine shareholding details of some lesser known Hindi news channels, and some relatively recent entrants in the Direct to Home bouquets.
The permission to uplink news channels is governed by ‘Policy guidelines for uplinking of television channels in India’ issued MIB. The guidelines provide a format (FORM-1) for applicants to seek permission for uplinking channels. Amongst a host of details, the FORM-1 requires disclosure of basic ownership and financial details of the applicant. Indicative list of particulars include:
- Details of the company/entity;
- Details of Board of Directors;
- Structure of Equity Capital;
- Share-holding pattern;
- Balance sheet;
- Source of funds;
- PIB accreditation; and
- Details of editor(s).
The guidelines also require the TV channel to inform the ministry of any subsequent change in ownership details within 15 days. Ownership details of unlisted companies are made available to public by the Registrar of Companies, though behind a paywall. But we chose to ask from MIB, given the rigorous process involved in obtaining uplinking permission; viz., security clearances and vetting by intelligence agencies.
One would have imagined MIB to act as citizens’ watchdog in enabling access to the most accurate source for ownership details. My RTI experience proves otherwise.
The RTI application
On Nov’ 09, 2015, I requested the MIB to provide copies of forms submitted by 9 Hindi news channels under the Right to Information Act, 2005 (‘RTI Act’). These channels include:
|
TV Channel |
Company (Date of Permission) |
|
1. India News |
Information TV Pvt. Ltd (21.09.07) |
|
2. News Nation |
News Nation Network (03.10.11) |
|
3. News World India |
F7 Broadcast Pvt. Ltd. (06.05.13) |
|
4. India 24x7 |
Omega TV Media Pvt. Ltd. (12.07.11) |
|
5. India News Haryana |
Information TV Pvt. Ltd (06.05.08) |
|
6. Samachar Plus |
VPT Entertainment House (27.05.13) |
|
7. Sudarshan News |
Sudarshan TV Channel Ltd. (21.02.05) |
|
8. Kashish News |
Kashish Developers Ltd. (28.12.10) |
|
9. APN |
Sobhagaya Media Pvt. Ltd. (15.01.08) |
The text of queries are as below:
(a) Provide true copy of latest application form submitted in relation to TV channels mentioned above, seeking permission for uplinking of TV signals. i.e., FORM 1 as per Policy Guidelines on Uplinking of TV Channels from India 2011 or any other form application prior to the said guidelines.
(b) Provide the latest details available against each of the channels mentioned above, in relation to the following (based on any intimation received subsequent to the grant of permission):
(i) Changes in Foreign Direct Investment in the company, if any.
(ii) Changes to Shareholding Pattern of the Company, i.e., relating to
contents of Table 2 of FORM 1 or its equivalent.
The CPIO’s reply
The Central Public Information Officer (CPIO) did not respond within the 30 day stipulated time under the RTI Act. I filed a First Appeal on Dec’ 15, 2015, to which the Appellate Authority directed the CPIO to provide the information on Jan’ 12, 2016.
On Jan’ 13, 2016, then CPIO casually rejected the request stating that the application seeks ‘third party information’ which is exempted under Section 8(1)(d).
First appeal
Section 8(1)(d) of the RTI Act permit CPIOs to exempt disclosure under 3 following conditions:
(i) the information involves commercial confidence, or trade secret, or intellectual property;
(ii) the disclosure would harm the competitive position of a third party; and
(iii) there is no larger public interest in enabling public disclosure.
Unfortunately, the reply did not state the nature of the information involved or sought to be exempted under FORM-1; viz., commercial confidence, or intellectual property, or trade secret. This apart, it absurd to consider shareholding pattern as some sort of proprietary information. Much of this information is routinely disclosed to various other statutory authorities (esp. Registrar of Companies) and also accessible for public inspection under the Companies Act, 2013.
This is not the first time anyone has asked MIB for this information. Vinod K. Jose (Editor, Caravan) had filed an RTI asking for shareholding details of SUN DIRECT, especially of Kalanidhi Maran, around the time when 2G scam was making the news. Surprisingly, the MIB raised a similar objection and claimed exemption under Section 8(1)(d). Mr. Vinod Jose took it up to the Central Information Commission ('CIC') and eventually succeeded. Similar RTI was filed by one Mr. Sanjeev Jha, seeking details regarding MOIVES NOW channel. That too was initially rejected by MIB citing Section 8(1)(d). The CIC acted on a complaint and directed the MIB to provide this information.
Both these decisions were more than 3 years before The Hoot filed an RTI in November 2015. On Feb’ 6, 2016, I filed another First Appeal against the above reply. But did not receive any response.
This is defiance of the RTI law, after the CIC had clearly directed MIB to disclose the details earlier.
CIC hearing
I filed a Second Appeal before the CIC on Jun’ 27, 2016. The CIC fixed the matter for hearing on Nov’ 17, 2017, more than a year later. At the time of hearing, the representative from MIB handed over a fresh reply which stated that “information sought by applicant is also exempted under third party information and under Section 8(1)d, Section 8(1)e and Section 8(1)j of the RTI Act, 2005.”
The MIB’s conduct in adding two new grounds almost 2 years later is extraordinary. Add to this, the reply fails to explain why this information is exempted from disclosure. It is critical for the CPIOs to establish:
(a) that the information is required to be protected under the law; viz., whether it pertains to proprietary information, or that disclosure would result in breach of fiduciary relationship, or that disclosure would invade privacy of the shareholders; and
(b) that there is no countervailing public interest in enabling public disclosure.
CIC order
The decision was pronounced on Mar’ 06, 2018. CIC stated that the MIB failed to explain why the information is exempted under 8(1)(d) or 8(1)(e) or 8(1)(j) despite giving them reasonable opportunity. The CIC was very critical of their conduct as well.
Having considered the submissions of both parties, Commission finds it expedient to make certain primary remarks regarding the approach of the CPIO throughout the case. CPIO has not assigned any tenable submission to justify the denial of information except for reiterating the provisions of the Act under Section 8(1)(d), 8(1)(j) and 8(1)(e). At a later stage, CPIO has even seemingly withdrawn the application of any of these exemptions for the information sought on para (b) of the RTI Application.
CIC felt that the RTI request was unreasonably rejected, since the details are available for public access under the Companies Act.
Neither during the hearing nor in the written submissions of CPIO, has he denied the statement of the Appellant that share holding; funding etc. related information are available for public access under the provisions of Section 610 of Companies Act, 2013 thus deeming the information to be available in public domain.
Finally, the CIC passed the following directions:
Accordingly, Commission directs the CPIO to provide available and relevant information sought at para (a) of the RTI Application to the Appellant after blacking out the date of birth; passport details and residential addresses of the third parties in consonance with Section 10 of the RTI Act.
For para (b) of the RTI Application, Commission accepts the contention of the CPIO that the information is not available in a compiled form as Appellant has asked this information for 9 channels, compiling the same may result in disproportionate diversion of resources of the public authority. In view of this, Commission directs the CPIO to allow inspection of relevant records to the Appellant so that he can cull out the specific required data. CPIO shall afford the opportunity of inspection on a mutually decided date & time intimated to the Appellant telephonically and in writing.
MIB did not choose to challenge the decision before the High Court and agreed to comply with the CIC order.
Compliance
In response to my first query, the MIB sent me a photocopy of FORM-1s submitted by all these 9 channels sometime in mid-April. However, the MIB did not provide the accompanying documents filed along with FORM-1 which includes the details of shareholding pattern and foreign investment. The basic form itself refers to annexed documents. In response to second query, the MIB asked me to inspect the files on any working day with prior intimation.
After 2 reminders and 3 visits to MIB, I finally got to inspect the files on 14th May.
Record keeping & updating
MIB hasn’t embraced Digital India yet. The hard-copy of original filings have not yet been digitalized, and only source of record for reference. The MIB does not maintain itemized lists of documents submitted by TV channels. Add to this nightmare, the documents are stacked in reverse chronology - i.e., latest document first – made it very difficult to navigate.
As far as subsequent changes in shareholding pattern - the CPIO candidly admits that many channels often do not provide any such intimation. The CPIO further added that they find it convenient to access the details from the MCA portal as and when it is necessary.
The relevant excerpts from the record (viz., shareholders details & auditor's certificate) were sent to me by post a month later.
Disclose proactively
The RTI Act casts an obligation on public authorities to proactively disclose as much information as possible at regular intervals. More specifically, Section 4 requires details of “of recipients of concessions, permits, or authorisations” granted by public authorities to be published widely, including on the Internet.
MIB has evaded their statutory obligation for more than 13 years and counting. Their official website contains the list of TV channels authorized to uplink from India, but the recipients of license and their net-worth has not been published.
Sai Vinod is a lawyer and researcher.