A Chhattisgarh-based activist, Alok Shukla had asked for a copy of this specific MDO contract and all government records pertaining to this contract first in February 2018 and then followed it with appeals as his RTI application was repeatedly rejected.
The Chhattisgarh state information commissioner’s orders could now set precedent for MDO contracts signed by all state governments as well as Coal Indian Limited to also be made public under the RTI Act. Several state governments, including Rajasthan and Maharashtra have so far refused to divulge them. But, a retired central information commissioner explained, “The order of the state information commission is not binding on other states but it holds ‘great persuasive power’.” He explained that the state authorities as well as the involved companies have the option to appeal against this order in the high court and then in the Supreme Court. The Central Information Commission does not have appeal powers over state information commissions.
The Chhattisgarh state power genco had denied the information at the time that BJP was in power. But, Bhupesh Baghel, before he took over reigns of the state government as Congress chief minister in December 2018, had accused state power firms of signing such MDO contracts to buy coal from private companies at a higher than market prices. Therefore, the likelihood of Baghel’s government appealing against the order is low.
After the Supreme Court cancelled allocation of 204 coal blocks, the National Democratic Alliance government brought in a new law to deal with them. Under it, the Union government auctioned as well as allocated coal blocks. The allocations were made to state and central power generation PSUs. Many of them have signed or are in the process of signing MDO contracts with private companies.
By December 2018, the Union government said 15 MDO agreements had been signed but they had not maintained copies of these agreements as required by law.
In August 2018, then a member of Parliament Congress’ Digvijay Singh asked the government to clarify whether MDO agreements could be accessed through RTI applications or to disclose the “details of the key commercial terms of all such agreements”.
The then coal minister, Piyush Goyal replied stating, “The provisions of Right to Information Act, 2005, and disclosure requirements specified in Model Contract Agreement are applicable on such agreements.”
But in the model contract document he cited, the Union government had advised states to not provide the MDO contracts under RTI Act if they so wished.
The Chhattisgarh state information commission cited this reply in its order favouring release of the MDO contract to the applicant.
In its order it said that because the information pertained to natural resources of the country it was of great public interest. It gave the state authorities 30 days to provide a copy of the MDO agreement and the official files pertaining to the contract.
It overruled the state’s three key arguments against sharing the contract details. The state had contended that there was no public purpose to be served by providing the details under RTI. It had said that the contract was private information of the state PSU and the contracted companies, Adani Enterprises and its subsidiary, and the latter had refused permission to share it with public. It also contended that the contract and other government records contained commercial information of these companies and therefore were exempt under RTI.