Monday, July 22, 2013

Does the RTI Act cover political parties?

Political parties are up in arms against the CIC judgement which says they are public authorities
and hence within the purview of the RTI Act. The public is infuriated that political parties should be opposed to the CIC order. It sees this as unwillingness on the part of the political class to practise transparency. Are political parties being unduly cussed in the matter?

People are entitled to their views on whether it is desirable to bring political parties under the purview of the RTI Act. The important question, however, is what the RTI Act, as it stands, has to say on
the subject. In other words, how sound is the legal basis for the CIC's judgement? An article
in EPW raises this question and comes to the conclusion that the CIC's judgement is rather infirm.

The author, Anirudh Burman, points out that the CIC gave three reasons in justification of its judgement: political parties “are continuously engaged in performing public duty”, receive sub-
stantial financing from the government and have important constitutional and legal rights and liabilities.". He opines that the the last reason given has no legal basis as "This criterion is
not present in the definition of “public authority”at all."

He then scrutinises the other two reasons. Can political authorities be said to be
"public authorities" because they perform public functions? He thinks not- nowhere in
the Act is a "public functions" test specified for determining whether an entity is a public
authority. Who can be considered public authorities is laid down down very precisely in the
Act. The CIC also refers to the fact that political parties are registered with the Election Commission
and argues that this makes them somewhat similar to entities to established by government.
However, there is a Karnataka High Court  judgement that ruled that goes against this stand.

What of the argument that political parties get "substantial financing" from government? The difficulty, Burman points out, is that the CIC has steered clear of defining what constitutes "substantial financing". He argues that unless it can be established that, without the support they receive from government, political parties cannot carry on with their activities, they cannot be
said to receive ""substantial financing".

It is important to distinguish between transparency in respect of funding of political parties
and the broader transparency required under the RTI Act. In respect of activities not related
to raising funds, Burman argues- correctly, in my view- that transparency may not be desirable
and may pose obstacles to their effective functioning:
First, as a body seeking to outdo other competing parties, a political party has the
right to keep certain parts of its activities hidden from public view.  .....Second, in light of the fact that the RTI creates this information asymmetry, theRTI mechanisms may become a tool of political warfare rather than a tool forpromoting transparency.
The danger is stretching the RTI Act to cover entities it was not intended to is that it may
end up discrediting the Act itself, quite apart from rendering the entire political class
hostile to it.In the process, a most valuable instrument of empowerment and the purpose
of rendering a whole range of public authorities accountable may fall by the wayside.


Wah Sarkar said...

Application of every law is based on interpretation. The CIC is absolutely correct in the interpretation it has made.

important constitutional and legal rights and liabilities . -------- The political parties under purview here are the nationally recognized political parties only. This means that these parties are the most representative of the Indian electorate across the central government and various state governments. Furthermore, they can exercise political whips. In case am MP decides to vote against the decision taken by a party on a bill, the party has the right to expel an MP from his office. Is this not ''important'' by most standards of public accountability?

A party does not need to maintain specific records/create new information for RTI. It only needs to share existing information. If the desired information is unavailable, the party can say so. This will help the public obtain a tangible understanding of the poor internal functioning of political parties including the lack of financial transparency among other things. Any other organization in the world that functions smoothly, would pride itself on robust internal procedures and monitoring mechanisms. Any auditing system is welcomed by an organization that wishes to genuinely showcase its transparency. It is foolish to cite operational burdens in order to get out of this situation specifically when there is such great suspicion prevalent about the way political parties function. Furthermore, there exists a provision for political parties to refuse to provide information that it deems confidential just as is the case for any public authority. To understand the magnitude of the problem see this short presentation -

We are the largest democracy in the world. However, there is no democracy within political parties. Furthermore, for me the common man, without RTI, there is no mechanism for me to question the parties that represent me and form my government.

telugu vanita said...

very good article.

Anonymous said...

CIC order is like prescribing a Good Medicine for a disease it is not intended for and expecting a good result out of it. but eventually to find that it does more harm than good regardless of the noble intentions.