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.
Summary
·
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.
Justification:
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.
Views Against
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.
Other options
·
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)
Additional Readings
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