The Asian Age: National: Sunday, June 03, 2018.
The Election
Commission’s recent order that political parties do not fall under the purview
of the Right to information Act (RTI) throws up some unresolved questions with
regard to their sources of funding and what information can be made publicly
available.
The question
whether political parties come under the purview of the Right to Information
Act (RTI) has been raised several times in the past. The Election Commission of
India has recently said that they do not. However, that is not the end of the
debate. This question will continue to come up. Interestingly, the Central
Information Commission seems to be of the view that political parties cannot be
excluded from RTI.
The basic
objective of RTI is to ‘promote transparency and accountability in the working
of every public authority’ and for that purpose to put in place a regime of
right to information for citizens. Right to information enriches the content of
democracy by providing a very valuable right to the citizens of the Republic to
access information on every activity of a public authority. The Act defines
information in the widest possible term and the definition of ‘public
authority’ emb-races not only all authorities under the Constitution and law,
but also non-governmental organisations substantially financed by the
government. This definition makes it clear that the focus of this Act is not
merely on governmental authorities, but also on private bodies that receive
‘substantial’ amount of money from the government. Thus, the scheme of RTI is
to enable the citizens to secure the widest range of information.
When we
consider the question whether political parties come under the purview of RTI,
the objective and purpose of this legislation mentioned above become important
factors. A political party is an association of individual citizens registered
as a political party by the Election Commission of India under Section 29 A of
the Representation of People Act, 1951 (RP Act). This laconic definition in the
RP Act does not reveal the actual role or functions of a political party in our
democratic system.
Political
parties are in fact the kingpins of the democratic system. Party less
democracy, a concept toyed with by political leaders in the early years of our
Republic is only a pipe dream. It cannot work on the ground. Thus, even though
the Indian Constitution originally did not mention political party, the 10th
Schedule which was added later recognises it and provides for the stability of
party system.
Now, let us
try to clearly understand the position of political parties in our democracy.
Even though these are private, non-governmental bodies, they provide elected
representatives to the legislative bodies like Parliament and State Assemblies.
These representatives form governments that rule the country. Thus, the
political parties in reality provide governments that implement their policies
and programmes. So, the political parties are not mere associations of citizens
or non-governmental bodies performing non-governmental functions. By
participating in elections and thereafter forming governments, the political
parties are performing a vital public function. No ordinary association or body
performs Constitutional and statutory functions like providing MLAs and forming
governments. This makes political parties fundamentally different from ordinary
non-governmental bodies. Therefore, it is only logical that a political party,
though not a public authority under the definition in the RTI Act, should be treated
as a deemed public authority for the purpose of this Act.
Let us now
consider another point. Under Section 29B of the RP Act, 1951, a political
party can accept any amount of voluntary contribution from a person or company
other than a government company. The political parties were prohibited from
accepting contributions from foreign sources under the Foreign Contribution
(Regulation) Act, 2010 which has now been changed. Now they can accept any
amount from a foreign source. Section 29C of the RP Act, 1951 requires
political parties to report to the Election Commission every year the total
amount received, the names and addresses of the donors etc. The most important
point about this contribution to political parties is that it is exempt from
the income-tax. Section 13 A of the Income Tax Act, 1961 says that an “income
by way of voluntary contributions received by a political party from a person
shall not be included in the total income of such political party.”
Two things
stand out from what is stated above. One, a political party can receive
unlimited amount of money from an individual or a company within the country or
a foreign source. Two, it does not have to pay any income-tax. All that is
required by the law is to submit a report to the Election Commission and the
annual return under Section 139 of the Income-Tax Act, 1961. However, in the
case of recently released electoral bonds, even that legal formality is not
required to be fulfilled.
So, the
crucial point is that the government by exempting the entire political
contributions received by political parties from income tax is foregoing
substantial revenue. Is it not a substantial indirect funding of a
non-governmental organisation? Section 2 (h) (d) (ii) says that a
non-government organisation which is directly or indirectly substantially
founded by the government is a public authority. Well, the lawmakers might not
have had political parties in mind when this clause was enacted. But, then
political parties are not simple non- governmental organisations. These are
constitutionally recognised bodies. Their functions like setting up the
candidates for election, forming the government on getting a majority, etc,
make them a part of the Constitutional set up. The exemption of the entire
income of a political party from contribution signifies the recognition by the
lawmakers that the state needs to provide them funds either directly or
indirectly. Income-tax exemption, in this context is an indirect funding. For
this reason too, the political parties should be deemed to be coming within the
purview of the RTI Act.