Daily Current Affairs for UPSC IAS | 20th August 2021

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1. Private varsity brought under RTI purview

UPSC Syllabus: Mains – GS Paper II – Polity & Governance
Sub Theme: Public authority under RTI act | UPSC

The State Information Commission (SIC) in Odisha has declared Kalinga Institute of Industrial Training (KIIT), a deemed to be university and one of State’s largest private institutions, as a public authority, which means the university has to furnish information under the Right To Information Act.

Despite KIIT’s reluctance to come under the purview of the RTI Act during the past four years of hearing, the SIC, observed that since the institute received significant benefits from the State government, without which it would have struggled to carry on, it should respond to the RTI queries.

This is for the first time that a major private university in Odisha has been declared a public authority under the RTI Act.

KIIT had submitted that the institution did not come under the RTI Act as it was a society of private persons registered under the Societies’ Registration Act, 1860, and it was neither set up under the Constitution nor was it established by an Act of Parliament or the State Assembly.

The RTI Act empowers citizens with the right to access information under the control of ‘public authorities’. Accordingly, RTI Act creates a legal framework to make good this right by defining public authorities, allowing citizens to ask public authorities for information, and imposing penalties on officials of public authorities for failing to disclose ‘information’ defined in Section 2(f). The RTI Act also mandates that “every public authority shall pro-actively disclose information pertaining to it, and maintain its documents and records to facilitate the right to information under the Act”.

Therefore the question of “who is a public authority?” is critical one because it sets the boundaries of the scope of the RTI Act specifically and the transparency regime in the country, more generally.

Definition of “public authority”

“Public authority” is defined in Section 2(h) of the RTI Act. It states:

“public authority” means any authority or body or institution of self- government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by state legislature;

(d) by notification issued or order made by the appropriate Government, and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

The Delhi High Court has stated that the second part of the definition is “distinct in alternative, and not cumulative”. The Delhi High Court has clearly stated that the aim of the second part of the definition is to bring bodies that may not have been established by or under a notification, but are still substantially financed, owned or controlled by the government. The Delhi High Court has also clarified that entities falling within the first part of the definition (from clauses (a) to (d) do not have to additionally be substantially financed, or owned and controlled by the government.

The Delhi High Court has ruled that the mere establishment of a body under a statute will not automatically render it a public authority for the purposes of the RTI Act.

Therefore, companies incorporated under the Companies Act, 1956, societies and trusts registered under laws providing for their creation and registration do not become public authorities merely by virtue of Section 2(h)(d) of the RTI Act.

Understanding the phrase ‘Control by the government’:

How is control by government defined? High Courts have considered entities to be controlled by the government on the basis of:

(a) the definition of “State” in Article 12 of the Constitution

In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

(b) supervision and regulation by the government agencies under laws such as Kerala State Co-operatives Act.

Some courts have also taken the opposite point of view arguing that regulation and supervision cannot be equated with control.

Co-operative Societies Case

The level of direct or indirect control with respect to societies does not meet the required threshold, that is, it is not “deep and all pervasive” and therefore cannot be considered within the expression “State” under Article 12.

Mere supervision or regulation as such by a statute or otherwise of a body would not make that body a public authority within the meaning of Section 2(h)(d) (i) of the RTI Act.

Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act.

Understanding the phrase ‘substantially financed’:

In the Co-operative Societies Case SC observed that:

Regarding the term “substantially financed”, the Court said that the term cannot be interpreted using a de minimis approach, and that the financing must be “actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable.” The Court also noted that the State may provide schemes for welfare projects, but said that unless the funding was so substantial that the body “would struggle to exist” without it, the relevant provision could not be engaged. Thus “merely providing subsidiaries, grants, exemptions, privileges” did not satisfy the requirement.

“We are, therefore, of the view that the word “controlled” used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the appropriate government

As for NGOs, the Court stated that, even in the absence of statutory control, it is possible to establish that an NGO has been substantially financed directly or indirectly by governmental funds. The latter would bring those organizations within the definition of “public authority”.

If information is personal and does not relate to any public activity or interest, the public authority or officer is not obliged to comply with the request.

Co-Operative Societies Act would not be considered as “public authorities”, because it cannot be shown that they are “owned, controlled or substantially financed “ by the government.

a lot of bodies that were declared to be ‘public authorities’ were in fact not adjudged to be ‘state’ under Article 12. Indeed, while the Board of Control for Cricket in India was held not to be state, the Indian Olympic Association, with similar facts and circumstances was adjudged to be a ‘public authority’ by the Delhi HC.

An organization may be adjudged ‘state’ under Article 12 but is nonetheless unfit to be called a ‘public authority’ under Section 2(h)(d)(ii). Such a unique instance was provided by an order by the Delhi High Court earlier this year, which held that the private news television channel Aaj Tak was amenable to writ jurisdiction. Further it awarded five lakh rupees to the petitioner, a rape victim, for violations of her right to privacy and confidentiality as the respondent news channel had revealed her name.

In the case M.P. Varghese vs. Mahatma Gandhi University, it was observed that the definition of ‘public authority’ has a much wider meaning than that of ‘State” under Art. 12. Further, the definition of “State” under Article 12 is primarily in relation to enforcement of fundamental rights through Courts, whereas the RTI Act is intended at achieving the object of providing an effective framework for effectuating the right to information recognized under Art. 19 of the Constitution of India.

 

2. U.S. not interested in trade pact: Goyal

UPSC Syllabus: Mains: GS-III: Economy
Sub Theme: Indo-U.S trade relation | UPSC

India-US trade relations

  • India and USA are the world’s two largest democracies. Both the economies occupy a significant position in the world economy with a combined contribution of around 28% in the world GDP.
  • According to the data of the commerce ministry, in 2019-20, the bilateral trade between the US and India stood at around USD 140 billion

India enjoys positive trade balance with US:

  • USA’s share in India’s total merchandize exports to world stands highest at around 17%.

India’s top  Merchandise exports to US during FY 2020:

  • Pearls and precious stones
  • Pharma products
  • Nuclear reactors, boilers, machinery and mechanical appliances
  • Automobiles and parts & accessories
  • Electrical machinery and equipment
  • Textile articles
  • Mineral fuels and products

India’s top Merchandise imports from US:

  • Mineral fuels, mineral oils and products of their distillation
  • Pearls and precious stones
  • Nuclear reactors and Boilers
  • Electrical machinery and equipment
  • Organic chemicals

India’s top service exports to US:

  • Telecommunications, computer, and information services, research and development, travel sectors etc.

India’s top service imports from US:

  • India’s services imports from India include services in the fields of travel, intellectual property (computer software, audio and visual related products), transport sectors, among others
Investment relations: USA is the 5th largest foreign investor in India with cumulative Foreign Direct Investments (FDI) equity inflows of close to USD 30 billion from April 2000 to June 2020

Though the bilateral trade between India and US has been increasing over the period, US is not interested in FTA with India. This is partly because of Trade deficit of US with India and partly because of existing issues in bilateral trade relations between the two countries

Issues:

 

  • Solar: Domestic content requirement for solar panel manufacturers by the Indian govt as part of JNNSM (Jawaharlal Nehru national solar mission) was objected by US alleging that this requirement is discriminatory and violates WTO principle of National treatment 
  • Pharma products: Indian govt has put cap on the prices of Medical devices like coronary stents and Knee implants to make them available to the public at affordable rates and also increased the Import duties to encourage domestic medical device Industry. But USA has been demanding to reduce customs duty and remove price caps
  • E-commerce rules: The e-commerce rules released by India made the market place e-commerce platforms like Amazon to limit their investment in Inventory and controlled predatory pricing. This didn’t go well with the US govt
  • Data localisation norms of India were objected by US as it impacts the business operations of the US based tech companies like Facebook, google etc.
  • GSP withdrawal: Trump administration removed the GSP (General system of preferences) benefits to India.

 

(GSP scheme allows the developed countries to adopt a “generalised, non-reciprocal, non-discriminatory system of preferences in favour of the developing countries, including special measures in favour of the least developed nations.”)

So it is desirable for both the countries to sort out these issues to achieve the full potential of Bilateral trade between the two countries and finalise FTA sooner.

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