The very folks who gave us RTI Act are screaming blue murder as political parties are brought under the transparency regime. Their apprehensions are misplaced and arguments misinformed
Jagdeep Chhokar | June 19, 2013
June 3, 2013 turned out to be very similar to July 8, 2002. How and why?
On June 3, 2013, the central information commission (CIC) announced a decision that “held that AICC/INC, BJP, CPI(M), CPI, NCP and BSP are public authorities under section 2(h) of the RTI Act.” The immediate aftermath of the decision appeared ballistic. It seemed that a storm had hit the entire political establishment. Some commentators even went to the extent of saying that the decision had the potential to destabilise and destroy the entire political system. Others called it “adventurism”. All six political parties named in the decision, and some not included, were unanimous in (a) opposing the decision, (b) saying that it will not stand scrutiny of the courts (a well-known lawyer and spokesperson for one of the leading parties even said it will be “immediately struck down”), and (c) saying that the decision was un-implementable.
Some seemingly dispassionate observers commented that such unity among different political parties was unprecedented and “have never happened before”. They seemed to have forgotten what happened 11 year ago.
On July 8, 2002, an all-party meeting was held in New Delhi, attended by 21 political parties. The meeting unanimously decided that a decision of the supreme court announced on May 2, 2002 (in civil appeal no. 7178, Union of India v/s Association For Democratic Reforms & Another) which required candidates contesting elections to submit sworn affidavits disclosing criminal cases pending against them, their assets and liabilities, and their educational qualifications, will not be allowed to be implemented and, if necessary, the Representation of the People (RP) Act, 1951 will be amended in the then ongoing session of parliament. The RP Act was indeed amended but the amendment was struck down as “unconstitutional” and “null and void” by the supreme court on March 13, 2003 in writ petition (civil) No. 515 of 2002 (Association for Democratic Reforms v/s Union of India & Another), and the submission of affidavits became law and still holds.
The CIC’s decision does have the potential to be a game-changer for India’s political system. It is enigmatic that the longest written constitution in the world, of the largest democracy in the world, did not contain the word ‘political party’ in it when it was enacted. It appears only in Schedule 10, inserted in the constitution with effect from March 1, 1985, as a result of the 52nd Amendment. There are a few provisions scattered over a number of legislations that apply to political parties but they are all piecemeal and often not connected or correlated with one another. Since these are kind of diffused, political parties have not been subjected to any systematic scrutiny. The CIC decision is the first that makes political parties, at least the six national parties, subject to scrutiny and that too by citizens at large. It seems it is the prospect of public scrutiny that makes political parties apprehensive, even jittery.
Essence of the decision
The essence of the decision is that these six national parties are “public authorities” under the RTI Act, nothing more, nothing less. The “obligations of public authorities” are specified in Section 4 of the RTI Act. Section 4, which is commonly referred to as the ‘proactive disclosure’ clause, actually has two distinct purposes. One requires every public authority to “(a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act”, and the other requires the public authority “to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information”.
Section 6 of the RTI Act gives every citizen the right to ask for any information from any public authority. Section 7 says the public authority “shall, as expeditiously as possible, and in any case within 30 days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9”.
Rationale for the decision
The 54-page order of the CIC gives detailed reasons for arriving at the decision that the full bench of the CIC, consisting of the chief information commissioner and two information commissioners, arrived at. While the order has given many reasons, a few stand out.
The primary reason is being “substantially financed, directly or indirectly by funds provided by the appropriate government”. Based on information obtained from the director of estates, government of India, through RTI applications, the petitioners/complainants – Anil Bairwal of the Association for Democratic Reforms (ADR) and veteran RTI activist Subhash Chandra Aggarwal – proved to the satisfaction of CIC that the total current market value of the plots of land allotted to political parties was '2,556.02 crore even at a very conservative estimate.
In addition, the total amount spent by the government on political parties for both the national and regional TV networks during only the Lok Sabha 2009 elections was '10.75 crore. This information was based on data provided by Doordarshan, again under RTI applications, about time slots provided to political parties and the standard rates for those slots.
Similarly, the amount spent by the government through All India Radio providing free time slots to political parties during only the Lok Sabha 2009 elections, again obtained using RTI applications, was '28.56 lakh.
Section 13-A of the Income Tax Act says, “Any income of a political party which is chargeable under the head ‘income from house property’ or ‘income from other sources’ or ‘capital gains’ or any income by way of voluntary contributions received by a political party from any person shall not be included in the total income of the previous year of such political party.” In effect, political parties do not have to pay any income tax at all, whatever be their income.
ADR had got access to income tax returns of political parties after a two-and-a-half-year struggle culminating in a decision by CIC in 2008. Taking the figures of total income declared by the six national parties, and computing the tax applicable at prevailing rates, it was estimated that a total amount of '510.02 crore was due from these six parties over a three-year period, which was waived off. It was therefore money spent by the government on political parties though indirectly.
Another reason is the statutory status of political parties. While anyone is free to form an association of persons, a political party cannot come into existence until it is ‘registered’ by the election commission (EC) under Section 29-A of the RP Act. Therefore, political parties do have statutory status under a “law made by parliament”.
The third, and arguably the most important, reason is the constitutional power that political parties enjoy. Articles 102(2) and 191(2) of the constitution, read with Schedule 10, give political parties the power to unseat members of parliament and state assemblies respectively. This is a very serious power – to remove those persons from elected positions to which they have been elected by “We, the People”. In effect, this gives political parties the power to undo what the people have done.
Another reason is the role of political parties in government formation. The government is formed by the political party which is in majority in the Lok Sabha or in the state assembly, or one which can muster up such majority in coalition with other parties. So the government is formed by political parties. And if the functioning of the government is meant to be transparent, as the RTI Act stipulates, then it follows that the bodies that form the government should also be transparent. The decision quotes paragraph 22.214.171.124 of the law commission’s 170th report on “Reform of Electoral Laws (1999)”, as follows:
“On the parity of the above reasoning, it must be said that if democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the Political Parties which are integral to parliamentary democracy. It is the Political Parties that form the Government, man the Parliament and run the governance of the country. It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the Political Parties. A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside.”
Irrational or “motivated” apprehensions
Now to the “apprehensions”, their possible causes, and explanations.
The biggest canard that has been bandied about is that political parties already report to the EC, and the CIC decision will make them answerable to two bosses: that is, the CIC in addition to EC. Nothing could be further than the truth.
First, political parties do not “report” to the EC. The number of occasions that political parties have not agreed to or have turned down suggestions of the EC is far too high to list them. Why only the EC, political parties even refused to heed the advice of the vice president when he, in his ex-officio capacity as the chairman of Rajya Sabha, suggested three actions to make sittings of the upper house more productive. Parties flatly and unanimously refused to go along with his suggestions.
Second, the CIC’s decision makes political parties answerable to the citizens of the country and not to the CIC. The very first sentence of the RTI Act reads “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority…”.
Thr CIC does not file RTI applications seeking information; citizens do.
The reason for spreading this canard is baffling. Either those who are going around saying this have not read the RTI Act or they are deliberately spreading misinformation. I am writing this with a sense of responsibility as I have repeatedly heard this being said in TV discussions.
The second major apprehension seems to be that all kinds of irrelevant and unnecessary information will be asked for, making it impossible for political parties to function. This is amazing for two reasons. One, there are thousands of existing and accepted public authorities functioning in the country, and all of them have continued to function despite the RTI Act having come into force on October 12, 2005. The same apprehension was raised repeatedly before the RTI Act was passed but the experience of the last eight years has proved it to be completely baseless.
The second reason for this apprehension to be baseless is the provision in Section 7 of the Act for a public authority to “reject the request for any of the reasons specified in sections 8 and 9”. Section 8 lists as many as 10 reasons for which a request for information can be denied. What needs to be understood is that while a citizen has the right to ask a question not only under the RTI Act but also under Article 19(1)(a) of the constitution (the fundamental right to freedom of speech and expression), a public authority has an equal right to refuse to answer the question but for reasons that have to acceptable to the appropriate authority which, in the ultimate analysis, is the supreme court. The law however makes two very important provisions. One, “(I)nformation which cannot be denied to the parliament or a state legislature shall not be denied to any person”, and two, information has to be given “if public interest in disclosure outweighs the harm to the protected interests”.
The above also covers the apprehension that “internal” affairs of a political party cannot be disclosed. The relevant consideration is what internal affairs of a political party are. The contention of political parties seems to be that whatever they choose to call “internal affairs” are internal affairs. This is not the case after the CIC’s decision. A call will now need to be taken as to what the internal affairs are that need to be disclosed because “public interest in disclosure outweighs the harm to the protected interests”. And in case of a difference of opinion between the information-seeker and the political party from which the information has been sought, this call will be taken first by the CIC, then by the high court, and finally by the supreme court.
It seems political parties (a) just do not like to be questioned by citizens, and (b) don’t want to share reasons why they would not like to provide some information. This stand, by organisations that always, and loudly, claim to work for the people, would be mysterious if the disenchantment with political parties was not as widespread as it is.
The way ahead
The CIC decision is now a fait accompli. It cannot be wished away. The ball is in the court of the political parties. They can accept is gracefully or fight it. Fighting is possible in two ways. One is to challenge it in the high court. Notwithstanding a senior lawyer’s assertion that it will be “immediately struck down”, the decision is on firm legal footing. Those who have read all the 54 pages of the decision will notice that there are detailed citations from various high courts and the supreme court substantiating the stands taken by the CIC, in addition of course to various earlier decisions of the CIC which have not been challenged. One such decision of the CIC is from 2008 wherein the income tax returns of political parties were made accessible to citizens.
Even before the issue gets to be argued in court, one or more political parties will have to challenge it in court. There can be no prize for guessing what that action will do to the existing disenchantment with political parties. But still, if some political party or parties choose to go ahead, that challenge will be met in the courts.
The other way of fighting it might be to try to amend the RTI Act. The bureaucratic and political establishments have attempted to amend the RTI Act every three or four months ever since it came into force. The stated reasons for the proposed amendments have varied from making the law stronger, making it easier to implement, to preventing frivolous and vexatious requests for information. The apprehension of what may be called the RTI community has always been that under the garb of improving the Act, the real motive is to make it toothless and ineffective. Civil society and the media have so far succeeded in preventing any amendments. One expects similar opposition to any attempt at amendment with such obvious motive as to prevent its application to political parties.
In the unlikely event of an amendment going through, the option of challenging that amendment in the court remains open.
If, however, the intention is to improve democracy and governance in the country, the best course for political parties is to accept the decision gracefully. Optimists believe that there are people in political parties who are unhappy with the current state of affairs and would like things to change drastically for the better. While most such people belong to the rank and file, there is also speculation that some of the very top functionaries of some of the parties want things in their parties to change. Be that as it may, this order provides political parties an opportunity to make a start toward changing how they have come to work.
Following the observation of Louis D Brandeis, a justice of the US supreme court from 1916 to 1939, that “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman,” political parties will do well to let sunlight fall on their internal functioning so that any infections there can be removed.
(This first appeared in the June 16-30 issue of the Governance Now magazine.)
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