Monday, 22 July 2013
Political Parties and RTI
This article is just a collection of views from various sources, some of whom speak for the motion and vice-versa.
“Good for others not for me"
This has been the tag line for transparency laws in India. Recently, there has been a lot of debate over the CIC’s order of bringing in the Political parties under the ambit of RTI. The 54 page judgment given by CIC on 3rd June describes Political Parties as Public Authorities. This judgment was given after providing ample opportunity to the representative of various Political Parties to respond on the issue and have taken inputs from the Election Commission's and Income Tax Department. The Commission argues that the judgment is based on the basic need to bring in transparency into the management and funding of Political Parties.
· Directs all national parties to appoint information officers and provide information sought under the act within six weeks.
· To comply with the provisions of the RTI Act by way of making voluntary disclosures.
1. Political parties are substantially financed indirectly by the central government through concessional land allotments, tax exemptions etc, and thus they are held to be public authorities under Section 2(h) of the RTI Act.
2. The criticality of the role played by political parties in our democratic set-up and the nature of duties performed by them also point towards their public character, bringing them under the ambit of section 2(h). i.e., the performance of public duty by political parties which “in spite of being non-governmental wield or directly or indirectly influence exercise of governmental power” to “affect the lives of citizens in every conceivable way”
Demands by CIC
· Enable anyone to ask for internal deliberations of a party including inter-party discussions.
· Disclose basis for selection of candidates.
· Divulge details on money raised and funding of political parties.
Association for Democratic Reforms (ADR) views
· Lack of scrutiny had led to parties being able to accumulate unexplained wealth running into hundreds of crores of rupees.
· Political parties must be treated as public authorities because they receive substantial government support in the form of free air time on Doordarshan and All India Radio during elections, discounted rents for party offices and large income-tax exemptions.
Views in support
1. Political parties have lost their legitimacy due to opaque financing, leaders with a criminal background, subversion of institutions, exposés of bipartisan scams and abuse of power.
2. State power works through institutionalized channels. The powers and functions of each and every state organ are defined through well-defined processes; state functionaries are held accountable not for outcomes, but adherence to due process. The government bodies are constitutionally liable to treat all citizens equally, except where permissible in law. Even the apex court had already ruled before the advent of the RTI Act that citizens have a right to know about the assets and criminal records of those who stand for elections.
3. Section 2 (h) of the act states that a non-government organization substantially financed, directly or indirectly by funds provided by the appropriate government, is included in the definition of a public authority. The commission looked at the figures of funds and these appeared to show that crores of rupees of government money had indeed been given to the political parties and could be considered “substantial funding”. Thus should be, willing to part with information to citizens as per the law. There have been a number of court judgments that have confirmed this.
4. There have been cases where private organizations have been declared as public authority by the respective high courts eg: CWG, Benglaru Airport authority, Delhi Sikh Gurudwara Sikh management committee etc.,
5. The order doesn’t interfere with the decision making process of the parties. Sec 8(d) of the act states “information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information”. Here political party can refuse to provide information demanded.
6. As per Sec 8(j) , any information which relates to personal information the disclosure of which has no relationship to any public activity or interest ,or which would cause unwarranted invasion of the privacy of the individual, can be denied unless it is in public interest. Thus, in case the parties do not want to disclose the name of the donors, the same can be done under this clause.
7. In the face of a disobedient political class, the order has also provided a grip to force transparency and a little of accountability on political parties.
8. It is important to note that political parties exist in a framework of unequal distribution of formal and informal power individually and collectively, and different power combinations assert themselves at different times to affect decision-making. It is useful to evaluate the notion of transparency and accountability of political parties against this backdrop.
9. Citizens will become more aware, which may influence their votes, and perhaps the way political parties work. It will uncover records — or the fact that there are no records — kept by them. These will slowly change the government, and institutions will become more accountable as currently there is no law which mandates the political parties to maintain books of records. Even if some embarrassing information is revealed, it would lead to improvements in their functioning.
1. Political parties are not governmental organizations or state-funded entities. There was no constitutional provision for a political party. A political party is an association of citizens who come together voluntarily to form a party on the basis of an ideology, programme and leadership.
2. The political parties allege that they are not substantially funded by the government rather by their supporters including people, corporate houses etc.
3. Under the present law, every recognized political party had to submit its annual statement of accounts and finances to the Income Tax Department and to the Election Commission. The Election Commission had been providing information about political parties’ audited accounts and finances to anyone who applied for it under the RTI Act.
4. The political party concerned can move for their disqualification. This has been cited to accord political parties a statutory status. This is obfuscation. The relevant issue is to stop defection by elected representatives who betray the mandate given to them. It applies to members of legislative bodies but does not apply to other members of parties who are free to leave a party and join another. But this disqualification of a member can be done only by the presiding officer of the House and not by a political party.
5. Under the law currently, parties are already accountable to the income tax authorities, the Election Commission and, in their political performance, the people. There is already a mechanism for accountability available. The RTI Act envisages that information on record must be furnished to any citizen, unless the entity is exempt as per the provisions of Section 8 or 9. The information commission comes into the picture only when there is a dispute between the citizen and a PIO on the issue of providing information. Essentially, CIC has done now is that it has made political parties accountable to the information commission under the garb of making them accountable to people. The RTI is a citizen empowerment tool, not a commission empowerment one.
6. Approach to regulation is not normative. It is instrumental. It is a function of our gut instincts of trust and distrust. Since we distrust political parties at the moment, we assume they ought to be regulated more tightly.
7. The CIC adduces that “in spirit these political parties can be said to have been constituted by their registration by the election commission of India, a fact akin to establishment or constitution of a body or an institution by an appropriate government”. But, even a marriage is valid only when recognized by a public authority; it does not mean public authority institutes the marriage. Merely registration doesn’t makes it public authority and accountable.
8. There is a case for disclosing funding sources. It jeopardizes freedom of association if we think all internal decisions of parties should be subject to some form of legal or public scrutiny. The order may pave the way for far-reaching interference in the internal affairs of parties.
Difficulties in Implementation
The decision of the CIC, if implemented, will have far-reaching implications for containing corruption. This is, however, not likely to happen for the following reasons:
1. In the case of political parties, there is limited scope for the enforcement of the penalty clauses as per Section 20 (1 and 2) of the RTI Act, through which the CIC imposes monetary penalty and recommends disciplinary action against the public information officer (PIO). It would be difficult to recover compensation from parties, if awarded to information seekers under Section 19 (8)(b) of the act, on grounds of perpetual harassment for obtaining information. It is alleged that a few office bearers of parties have dubious character and criminal records. If such persons are appointed PIOs, who will dare approach them for accessing information, by putting himself in danger?
2. The organizational structure of government bodies and that of voluntary associations like political parties is totally different. The RTI Act has been adopted keeping in view government servants, who plan and execute policies and programmes for the welfare of the people.
Therefore, a large part of the act, mainly Section 4 that deals with the maximum disclosure of information about a public authority, and Section 8 that deals with exemptions from disclosure, are entirely irrelevant for political parties.
Similarly, there are provisions, such as Section 2(j), which require the public authority to allow scrutiny of the day-to-day affairs and activities. This may not, however, be desirable due to the voluntary nature of such functions. Clearly, the CIC cannot afford to be oblivious to the role of a political party in a democratic country.
· Section 2(h) of the act has been defined such that public authorities could be easily identified. Those bodies not covered in the definition of public authorities could be asked to furnish the information under Section 2(f), which stipulates that a citizen can seek any "information relating to any private body which can be accessed by a public authority under any other law for the time being in force".
· In view of this, instead of holding political parties as public authorities, irrespective of the functions they perform, the CIC could have asked the EC to obtain the desired information under Section 2(f) from the concerned parties and that information could be shared with the requester.
· Such an order could have served the twin purpose of putting details of political funding in the public domain and avoiding unnecessary legal controversy on whether political parties could be brought within the ambit of the RTI Act as public authorities.
- Vijay Laxmi Merita (Student of www.indiancivils.com)
Posted by IndianCivils.com Support at Monday, July 22, 2013