CIC: Obtaining a license to operate from government agency such as the DoT will not vest the DoT with control over the functioning of Vodafone Digilink Limited; the extent of government control must be substantial - VDL is not a public authority u/s 2(h)

Information sought:

The appellant wants the call details of his mobile no. 9813162831 from 16/01/2012(9 P.M.) to 17/01/2012(4 A.M.) with number and duration of the call.

Grounds for the Second Appeal:

The respondent has denied the information stating that the company is not a public authority under Section 2(h) “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; “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; “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; of the RTI Act 2005.

Relevant Facts emerging during Hearing held on 10/06/2014:

The following were present

Appellant: Absent

Respondent: Mr. Ajit Kumar Singh Advocate

The respondent stated that he needs time to go through the written submissions made by the appellant in his 2nd appeal to the Commission and the matter should be adjourned.

Interim Decision notice dated 10/06/2014:

As requested by the respondent it is decided to grant adjournment and invite written submissions from him demonstrating in detail his stand on the issue at hand, so that full facts are brought on record. Accordingly, the respondent should furnish his submissions to the Commission (endorsing a copy to appellant) by 07/07/2014. The respondent should send his submissions to the Commission by post and also by e-mail at rtiorganize@gmail.com The matter is adjourned for 21/07/2014 at 4.00 PM

Relevant Facts emerging during Hearing on 21/07/2014

The following were present

Appellant: Absent

Respondent: Mr. Ajit Kumar Singh Advocate

The appellant was given an opportunity to participate in the hearing, however, he is absent. It is seen from the records that the appellant has averred that Vodafone Digilink Limited (VDL) is a public authority under Section 2(h) “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; “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; “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; (d)(i) of the RTI Act as it is controlled by the Department of Telecommunications (DoT), which forms part of the Ministry of Communications and IT. He has sought to substantiate this claim by averring that VDL operates only after procuring a license from the DoT and cannot operate its business without the consent of the DoT. Further, the appellant has claimed that VDL acts as per the directions and notifications issued by the DoT, making it clear that VDL is controlled by the DoT, and hence, falls under the category of ‘public authority’.

The respondent has countered this claim via written submission with the following contentions:

(i)                 VDL is a public company duly incorporated under the Companies Act, 1956 and  has not been established or constituted, nor is owned or controlled by a government agency;

(ii)               VDL has obtained a license from the DoT to provide unified access services in the Haryana circle. However, VDL operates independently of the DoT;

(iii)             VDL can in fact, challenge any order/direction of the DoT before the Telecom Regulatory Authority of India or any other appropriate forum and is not bound to follow the directions of the DoT; and

(iv)             DoT is in charge of formulating policies in the telecom sector and ensure its healthy and orderly growth. It does not control the functioning of any private telecom player like VDL.

Decision Notice:

The crux of the appellant’s contention rests upon the assertion that VDL is controlled by a government agency. In order to ascertain the import of the word ‘control’ under Section 2(h) “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; “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; “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; (d)(i) of the RTI Act, reliance is placed on the Hon‘ble Supreme Court’s decision dated 7/10/2013 in the matter of Thallapalam Ser. Cooperative Bank Ltd. & Ors. vs. State of Kerala & Ors. (Civil Appeal No. 9017 of 2013) holding as under:

“34. We are of the opinion that when we test the meaning of expression controlled which figures in between the words body owned and substantially financed, the control by the appropriate government must be a control of a substantial nature. The 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) “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; “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; “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; (d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory […] 35. We are, therefore, of the view that the word controlled used in Section 2(h) “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; “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; “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; (d) (i) of the Act has to be understood in the context in which it has been used vis-à-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body.”

It is thus clear, that in order for an entity to be considered a “public authority” under Section 2(h) “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; “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; “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; of the RTI Act, the extent of control of a governmental authority in the entity must be substantial and not merely of supervisory or regulatory nature. Obtaining a license to operate from a government agency such as the DoT will not vest the DoT with control over the functioning of VDL. DoT does issue instructions from time to time as a supervisor of the telecom sector, but control over the functioning of a private player such as VDL vests with its management alone. Therefore, the test of establishing deep and pervasive control under Section 2(h) “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; “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; “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; of the RTI Act is not satisfied and hence, VDL will not constitute a public authority under the RTI Act and no information can be sought from it under the same. The appeal thus, lacks merits and is dismissed.

BASANT SETH

Information Commissioner

Citation: Dr. Vikram Singh v. Vodafone Digilink Limited in File No. CIC/BS/A/2013/000927/5645