RSTV - The Big Picture: RTI & Political Parties

Participants:

Anchor: Frank Rausan Pereira
Speakers: Dr. S. Y. Qureshi, Former Chief Election Commissioner, Satyananda Mishra, Former Central Information Commissioner, Shekhar Iyer, Political Editor, Deccan Herald, R.P. Singh, National Secretary, BJP

Importance of this Episode:

• There has been a back and forth over the issue of political parties coming under the purview of the RTI Act. Recently, the Election Commission of India ruled that political parties are out of the purview of the RTI Act. However, later, in a statement issued by the Election Commission of India on 29th May, 2018, the ECI clarified that it goes by the CIC order of 3rd June, 2013 that declared national parties as public authorities for the purposes of RTI Act.

Note to Students:

This episode examines the prevailing situation (at the time of the recording of this episode) when the ECI had ruled that political parties were out of the purview of the RTI Act. The points examined in this episode will throw light on different aspects of the larger issue concerning RTI and the inclusion of political parties under its ambit. Students are advised to keep in mind some of the larger issues being discussed.

• The poll panel statement, which may prove to be controversial, came while deciding the appeal of an RTI applicant seeking to know donations collected by six national parties who were brought under the ambit of the transparency law by the CIC in June 2013.
• Six national parties, the BJP, the Congress, the BSP, the NCP, the CPI and the CPI-M for which information was sought by the applicant, was brought under the ambit of the RTI Act by a full bench of the Commission on June 3^rd, 2013.
• The Trinamool Congress (TMC), was recognized as the 7^th national party in 2016. The order has not been challenged in the higher courts but the political parties have refused to entertain the RTI applications directed at them. Several activists have approached the Supreme Court on the grounds of non-compliance of the CIC order and the matter is pending.
• On this edition of the big picture we analyse if political parties are or are not, out of the purview of the RTI Act.

Analysis by the Experts:

As far as the issue of RTI and political parties is concerned, the CIC made it very clear in June 2013 that all the national parties have to be brought under the ambit of the RTI. Yet, the EC now in the latest development has said that it cannot be the case. What is the issue at the crux of this?

• The understanding of DR. S.Y. Qureshi is that the order from the CIC was very specific that national political parties should be under the purview of the CIC.

At the moment, the Supreme Court has not given any stay. Which means, that the CIC order should be implemented. It is hard to ascertain the reasons to the contrary that the Election Commission of India (ECI) is sighting in the matter.

• It is difficult to understand the logic behind the Appellate authority within the Election Commission who seems to have passed this order. It is suggested that if the Election Commission is interested in bringing about transparency in the working of political parties, then they would always disclose information which was in their position.
• The order of the CIC was unequivocal. As far as the order passed by the CIC on June 3^rd, 2013 is concerned the six political parties mentioned above had to furnish information as required by the RTI. Information that is supposed to be disclosed under the RTI, must be disclosed.

What are the exemptions as far as the political parties are concerned?

Section 8 of the RTI Act gives a list of 10 different pieces of information which needn’t be disclosed.

This includes the following:

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(d) 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;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

What is wrong with making donations to political parties publicly known?

• R.P. Singh, National Secretary of the BJP mentioned that every penny made his party that is got from the public is disclosed and such details are already with the Election Commission and the tax authorities. Further, he believes that his party cannot be treated as a public body. He believes that only when elections are state funded, that political parties would be brought under the purview of the RTI Act.

Where does the matter stand now? Especially when the Election Commission says one thing and the CIC says something else.

• Even when the CIC had made the decision in June 2013, even at that time, political parties made the same argument that we do not get public funding, and therefore, they are not bound to disclose.
• On the other hand, political parties have also raised the question as to how the CIC alone can decide on this? And that this is not a matter to be decided by the CIC.
• Although the CIC is the final authority, the political parties question the CIC in so far as taking the decision. It is believed that unless a directive comes from the highest court in the land, political parties do not seem inclined to do it.

Concerns Espoused by Political Parties
On the face of it, political parties are not just bothered about being forced to disclose their funding, but they are also worried about the questions being asked as to:

1. the selection of their candidates;
2. selection of their party leaders;
3. elections to various bodies within their organization;
4. a particular call that is taken by the political party- such as why they want to form the government in one place and why not in another place.

• If all this were to come out in the public domain, they probably fear that all their internal mechanisms may get exposed.
• They may even get RTI pleas from their own party members as to why a particular candidate was given a ticket to contest the elections and why not the other person? Thus, these are fears that are actually clouding their approach to the whole issue.
• But, from the peoples point of view, this kind of approach by the political parties will be seen as stone-walling any attempt for the people to know how a political party functions. This is perhaps the only issue for which the political parties are on one side.
• Satyananda Mishra, former Chief Information Commissioner weighed in with his points. He said that as far as the argument of not listing oneself as a public body is concerned on the ground of it not receiving public funding, we need to note that in the RTI act, the body which is supposed to disclose information is the public authority- it doesn’t have to be the government.
• When we read the June 2013 order of the CIC, we realize that the CIC has categorically mentioned as to how the political parties receive indirect funding from the government.
• Imagine a political party whose annual income is 300 crore rupees, the tax liability of this political party would be paying 30% of it as income tax. Now suppose, an exemption of 100 crore rupees is being given as a tax exemption, then the 100 crore rupees is an indirect funding to the political party. Thus, this is one of the arguments that the CIC had placed in its order in 2013 June, which was never challenged by any of the political parties either before the honourable High Court of Delhi or before the honourable Supreme Court of India.
• Thus, the argument which says that political parties do not receive any public funding, or government funding is disingenuous. Regarding internal decisions, there is a section in the RTI act wherein, the disclosure of any information that would adversely impede competitiveness, would not be included under the ambit of the act.
• Thus, there is definitely some information which they can very legitimately withhold, as the law permits them to withhold.
• R.P. Singh, the National Secretary of the BJP weighed in with his line of arguments by saying that there is a difference between funding and rebate. Further, when it comes to rebate, there are many NGO’s which work in the country which should be under the purview of the RTI again. He further maintained that this is indeed a grey area and that the courts should probably take a call on this. Apart from NGO’s, a lot of media houses should also come under its purview then.
• Qureshi weighed in by saying that the income tax rebate is a huge subsidization given by the Government of India to political parties. Further, parties have been given prime property in Lutyens Delhi and in different parts of the country. Further, they are given free electoral rolls, free air time on the All India Radio which are all direct benefits which involve a lot of money.

Why haven’t the political parties not gone to court to try and settle this matter?  

Shekhar Iyer, Political Editor of the Deccan Herald weighed by mentioning that all the political parties decided to not even challenge this order, and that right now with the Election Commission coming in between, it has created a rather unsavoury situation as we have the CIC which has ruled in favour and there is the appellate body of the EC which says that this will not be done. It is hard to see political parties today taking the initiative unless there is a ruling from the Supreme Court. In the wake of the Election Commission’s reaction, even the left parties are dead against it, though they would want a more transparent approach towards disclosing the funding of parties. But, they (the Left) are not keen on the other aspects, notwithstanding the safeguards that the Act has. However, it is foreseeable that there would be a lot of public pressure building up on this entire issue. This is because it appears that the political parties have joined hands in trying to shield themselves from some kind of a public scrutiny. This is not going to go down in favour of political parties, because it would appear that when it comes to issues like this, they are all together.

R.P Singh then went on to add that it is not only the political parties that get prime real estate, but that even NGO’s, media houses also get such concessions.

The Way Forward:

• There is a serious shortcoming in the RTI Act. Unlike most of the laws of this kind, there is no provision for the CIC to enforce its own decisions.
• Thus, the political parties with impunity need not implement the orders of the CIC. Had it been a court order instead, then there would have been a contempt of court proceeding. Unfortunately, in the RTI Act, there is no such provision and that is the reason why the information seekers had gone before the Supreme Court of India to request it to intervene and get the CIC order implemented. But, as it happens with most of the RTI pleas going to the courts, the writ petitions of the information seekers have been pending for years now. The order was passed in 2013, and we are today in 2018. Thus, it is unlikely that the courts would intervene unless there is a great media and public pressure on everyone concerned to resolve this matter.
• Thus, it is suggested that the CIC is given stronger teeth. This is because the CIC goes through a quasi-judicial process and gives a judgement that has no tangible impact on the ground? Further, there is a very specific verdict for political parties.

Do we need a cleansing up of the entire system itself?

• It is difficult to see political parties in any way subjecting themselves to the kind of scrutiny that the RTI would allow.
• There are many bodies within the government that is seen as not responding to the directives of the CIC on providing information.
• There are already a litany of complaints as to how many government departments are not at all cooperating. Thus, if the law has to be enforced, the law has to be more specific and clear.

The public perception is the political parties are extremely opaque and that they do not deal with issues like funding, donations and other aspects adequately. Are political parties inclined to be a lot more transparent so that the faith in the public goes up?

• R.P. Singh believes that steps are already being taken in that direction by the present Prime Minister of India. The PM had said that no donation should be more than 2k INR. This was brought down from 20k INR to 2k INR. Also, the electoral bonds for party funding has already been introduced. Thus, the government is already working on that process where things should be more transparent.
• Further, it is not the CIC’s prerogative to find out as to which all private bodies in India need to be brought under the purview of the RTI. It is only when a citizen brings a matter before the CIC that the CIC adjudicates over the matter.
• In conclusion, it is strongly believed that public opinion will have to be built up more. With strong public opinion, seeking more transparency in the functioning of every institution, and not just the political parties is perhaps the only way forward. This has to be coupled with a clear verdict from the highest court of the land.

Further Reading:
UPSC aspirants are advised to read the associated reports and literature associated with this topic. The links are as below:  

1. http://rti.gov.in/rticorner/studybypwc/Executive%20Summary.pdf