RTI & Political Parties

By Prabhakar Timble
11 June 2013 06:58 IST

The Central Information Commission stole the limelight by ruling that political parties are public authorities as defined under Section 2(h) of the Right to Information Act and making it mandatory for political parties to designate Central Public Information Officers and Appellate Authorities. Naturally, all except the political parties have hailed this as a landmark judgement. Such orders provide vicarious pleasure to the general public as politicians and political parties are always in the firing range and contours. However, it is submitted that the order of the CIC may fail to hold the landmark if the political parties prefer an appeal against the judgement in the Supreme Court as the finding that political parties are public authorities is a weak area and worth contesting.

The duties of political parties are of public character but they may not clear the test of public authorities as defined under the RTI Act.  The role and agenda of NGOs, voluntary consumer organisations, voter councils, citizen forums, trusts espousing public causes, trade unions and media houses have deep public moorings. All such organisations receive public funding, government assistance, preferential land allotment free of cost or at concessional rates and tax exemptions or reliefs. There is nothing wrong to expect transparency from all of these. However, these are not strong postulates to clothe them as public authorities as enunciated under the RTI act.

It would be pertinent to note that the CIC had brought the Supreme Court under the ambit of public authority through a ruling in 2009. The Delhi High Court too concurred with the CIC. However, the Supreme Court stayed the order of the CIC stating that the RTI applies to the executive wing of the government.  The legal luminaries on the Bench extracted the Supreme Court from the scope of public authority by holding that it is a constitutional authority and not a public authority established and constituted by or under the Constitution. Supreme Court can claim to be a constitutional authority when it sits to perform judicial functions and should not hanker for this privilege for its administrative and non-judicial tasks. But, the order of the Supreme Court judges failed to appreciate this distinction whereas they do not miss a single opportunity to sermonize on transparency and openness at every opportunity that knocks their doors.

Non-relevant arguments

The arguments offered to shield political parties from the purview of the RTI Act start with the premise that the political party is not a government functionary or an instrumentality of the State. The key posts in political parties are not held by government functionaries as in case of other bodies such as trusts, corporations and cooperative federations which are “substantially” financed by government. The control of the government on a political party is not “deep” and “pervasive”. 

There are also arguments put forth to strengthen the inclusion of political party under RTI.  The public agenda of political parties influences government and public policy. They wield influence on different organs and instrumentalities of the government. Political parties have constitutional rights and duties. They are under the control and superintendence of the constitutional authority i.e. the CEC. The argument gets extended to the right of the people to know about internal party democracy, intraparty elections, yardstick for selection of candidates for parliamentary and assembly elections, induction, suspension, removal of members from primary membership and performance appraisal of election promises and manifesto. The people have a right to know everything that is done by a political party being a public organisation of which a person may or may not be even a sympathiser member.

However, given the fact that there is a specific definition of what constitutes a “public authority‟ for the purposes of the RTI Act, there is no warrant for incorporating the tests other than what is enunciated under Section 2(h). The arguments stated above are of little consequence as the RTI Act itself has defined the scope.

“Substantially” financed holds key

Presently, the CIC has held the political party as a public authority on the ground that this non-Government organisation is substantially financed, directly or indirectly by funds provided by the appropriate Government. The whole issue would be whether a one-time allotment of land and or accommodation to a political party by the government would amount to providing “substantial” finance to recognised political parties. The statutory exemptions or reliefs in income-tax are construed as indirect financing. This may not hold much water as there are exemptions and reliefs of various types for various target groups under the income-tax act.   The free air time allowed to political parties on state-run Doordarshan and All India Radio is only during the Lok Sabha and Assembly elections so as to provide a level playing field to all political parties. This is a fiat of the Central Election Commission and the model code of conduct. It is wrong to read financial contribution of the government in this arrangement.

The debate would be on whether the political party as a non-government institution is “substantially” financed by the government.  The financial support from the government to a political party, if any, is not regular, routine and continuous.  In earlier decisions, the Supreme Court has held that “What amounts to “substantial” financing cannot be straight-jacketed into rigid formulae of universal application. Of necessity, each case would have to be examined on its own facts”.  This would be the crucial issue for determination as political parties are preparing themselves to move for the final determination by higher judiciary.

The probability that the higher judiciary will pull out or dig out the political parties from purview of RTI Act looks promising. That the political parties should not shy away from RTI and view it as an opportunity is a different argument. Information that can be caught would be information which is demanded to be made public by the CEC or the laws relating to elections, registration and recognition of political parties.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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A game that bounced back!!!

What should we call this game - Secular or Communal Game!!!

Every citizen, except political parties, welcomed Central Information Commission (CIC) recent judgment. But from political perspective, “This order is going to have far reaching impact on accountability in political system which is currently polluted by corruption” Most intellectuals say, that Congress party leading UPA II has now realized their ‘self mistake’ by introducing RTI Act without thorough studies! And for very sure, now All Political Parties will get together, forgetting their secular-communal credentials, and amend the RTI Act and get them out of RTI ambient. They may even come out with something like ‘political party protection act.’ We need not be surprised if they bring out this Act!



LITIGATION IN BRIEF:

As per RTI Act, the definition of ‘public authority’ contained in Section 2(h) and the definition of ‘substantially financed’ contained in Section 2 (i) compelled the full bench of Central Information Commission (CIC) to pass the landmark judgment of bringing political parties under ambit of RTI Act.

According to the legal provisions, the RTI Act is applicable only to public authorities, which is defined as any authority body established by or under the constitution; by a law made by Parliament or state legislature; by a government notification. It includes anybody owned, controlled or substantially financed institution by the government.

Upholding the definitions of ‘public authority’ and ‘substantially financed’ as argued by two litigants with documentary evidence, CIC declared that political parties as public authorities, thereby, bringing them under Right to Information (RTI) Act. The full bench of the Commission, which had reserved its order after hearing the representations of litigants and political parties, made their judgment public on last Monday. The Commission has given six weeks time to political parties to appoint central public information officers and the appellate authorities to respond to RTI queries.

During the hearing before the CIC, the litigants argued that political parties are substantially financed by the government of the day in multiple ways including land given at concessional rates, exemption from income tax and free air time on All India Radio and Doordarshan.

The salient points made by litigants are:

(i) The political parties hold constitutional status and wield constitutional powers under the Tenth Schedule of the Constitution in as much as they have the power to —

a) disqualify legislators from Parliament and state assemblies;

b) bind legislators in their speeches and voting inside the house;

c) decide what laws are made;

d) decide whether government remains in power or which government

should come to power;

e) decide public policies that affect lives of millions of people.”

Further, the arguments include that the government has been indirectly financing various political parties by way of free air time on All India Radio and Doordarshan. These points were presented to the Commission to make a strong case to bring parties under the ambit of RTI Act.

AND OUT CAME THE CAT!

Analysis of the replies received from political parties showed that the top five political parties with the highest total income between 2004-05 and 2010-11 (last seven years) are: Congress with Rs 2,008 crore followed by BJP: Rs 994 crore, BSP: Rs 484 crore, CPM: Rs 417 crore and SP: Rs 279 crore. Going only by disclosed information, these 5 POLITICAL PARTIES IN TOTAL RECEIVED Rs 3,974 crores!!!!!!!

Above quoted figures are just a tip of party’s own Iceberg which is showing only 10 % of its actual above the surface of water!!!

The information also revealed that MAJORITY OF THE MONEY COMES FROM DONATIONS, however; the NAMES OF DONORS FORMED A SMALL PERCENTAGE ON THE OFFICIAL RECORD.

BEFORE TO THIS JUDGMENT:

In 2008 CIC had also passed the judgment making I-T returns and contribution reports of political parties available in the public domain. Even at that time all political parties had opposed to part with this information. CIC had, however, directed the Income Tax authorities to make this information public as there was huge public interest in the information.

NAME GIVING

Yes, party politics is a game of BIG MONEY!

Anyway, what shall we call this game – A Secular Game or A Communal Game OR Teribhi Chup, Meribhi Chup Game?

- Uday, Margao | 12 th June 2013 12:57

 

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