The
Hindu: New Delhi: Wednesday, 25 March 2015.
For
two years, national political parties have defied the RTI Act that they
themselves passed. They have not sought legal remedy either by appealing
against the CIC order declaring them to be Public Authorities. If lawmakers
defy the law in this fashion, it sets a bad precedent. Political parties should
be more accountable if they break the law, not less
Six
national parties in India, the Bharatiya Janata Party (BJP), the Indian
National Congress (INC), the Nationalist Congress Party (NCP), the Communist
Party of India (CPI), the Communist Party of India (Marxist) CPM and the
Bahujan Samaj Party (BSP), have refused to comply with the Central Information
Commission (CIC) order of 2013 declaring them as Public Authorities. On March
16, 2015, the CIC passed another order which in effect said that it was
helpless in the matter and would not impose penalty or enforce compliance of
its 2013 order. Earlier, it had issued summons on three occasions to the
parties concerned to present their arguments, all of which were ignored. The
new order says that penalty can only be imposed on the Public Information
Officer (PIO) and since the political parties have not appointed them, no
action can be taken.
The
contention and reality
For
two years, these national parties have defied a law which they themselves
passed. Nor have they sought legal remedy by appealing in court against the
earlier CIC Order declaring them to be Public Authorities. If such a situation
is allowed to continue, it raises questions. For instance if a non-governmental
organisation (NGO), company or individual defies the law, there are legal
consequences. But if lawmakers and political parties defy the law, what are the
consequences? Let us recall that political parties come to power based on the
people’s mandate and then run governments. They in turn control people’s money,
collected in the form of taxes and natural resources. Parties are a vital part
of democracy and are trustees of people’s resources. Therefore, they should be
more responsible and accountable if they break the law, not less.
Before
we go into the legal technicalities, we need to look at the spirit behind these
issues. Political parties contend that they are not under the ambit of the
Right to Information (RTI) and hence do not need to comply with the CIC order.
They have a right to that opinion. However, there are some laws that citizens
may feel are unjust. For instance, the cyber law [a section of which has since
been struck down by the Supreme Court] that is usually used against any citizen
who puts out material that someone powerful considers to be offensive. Or the
anti-sedition law. Can a citizen defy such a law and get away with it? He or
she could be arrested immediately. The only remedy for him or her is to go to court.
So, are we about to create a situation where political parties can defy the law
and get away with it, without even bothering to challenge the CIC order in
court? Democracy cannot thrive when lawmakers break the law. Public respect for
political parties is already at an all-time low and such actions by them will
only strengthen this further. Faith in law and order, and where the weak and
the powerful are supposed to be treated equal is also very low. This further
undermines democracy. Meanwhile, the new government has not yet appointed a CIC
nearly a year after coming to power. This is an effective way of scuttling the
RTI Act.
Remedies
Coming
to the specific issue, there are at least two opposing views. One says that the
CIC is indeed helpless to enforce compliance of its order as there is a lacuna
in the law. The other point of view is that the CIC can impose penalties on
party office-bearers in the absence of a PIO. Earlier Supreme Court judgments
have said that when legal powers are given, it is implied that the power to
enforce it is also given. Else, the Act itself ends up becoming meaningless.
The matter is very likely going to end up in court and with a judgment that
will have far-reaching consequences.
There
are a few possible remedies. One is for political parties to be more
responsible and follow the CIC order or have the courage to challenge it in
court. No individual party is willing to challenge the order since it would go
against public opinion. Another remedy is to amend the Act to clarify the
consequences of defying a CIC order and arm the CIC with explicit powers. A
third is for the court to give a judgment. It will be very difficult for
Parliament to pass an amendment to exempt only political parties from the RTI
while retaining other organisations under it. It would be struck down as being
unconstitutional as an earlier judgment in fact did to an amendment to the
Representation of the People Act (RP) Act which exempt candidates from
disclosing their assets.
Why
scrutiny?
If
the CIC cannot enforce its orders it means that the RTI Act is effectively null
and void. But the real issue is not only about whether the CIC can or cannot
enforce its orders. It is also about whether political parties should be under
the RTI. People also ask whether companies and NGOs should come under the RTI.
The spirit behind the Act is that organisations that use or control public
resources need to be accountable to the public and open to scrutiny. The
tortuous, legal red herrings that parties use which includes the fundamental right
of freedom of association do not in anyway alter the fact that they control
crores of tax money when in power. No other category of organisations has that
power. Applying this, the political parties definitely need to be under the
RTI. Companies and NGOs do not have the power that parties have and often
enough do not even use taxpayer money. But they should also accept being under
the RTI in keeping with the spirit of a modern, open, democratic society.
About
transparency
If
we dig deeper, the real question is this: what are parties afraid of? Their
apparent objection that minutes of internal meetings of a political party that
discuss party strategy or suitability of candidates for ticket distribution for
example cannot be made public, are excuses. It can easily be dealt with by
suitable exemptions which are in any case available under the existing RTI Act.
The real fear is exposure of their finances, as some admit in private. Their declared
income does not disclose the source of about 75 per cent of their donations.
Their undisclosed sources of income is anybody’s guess. Parties are fighting to
keep this a secret, fighting for their very survival as they see it. This is a
short-sighted view as the recent Delhi elections have shown. Perhaps, voters
are changing and appreciate transparency more than big money campaigns. If
party election strategists can understand this or if entrenched, vested
interests within parties can be removed, change is possible. This can only do
good to the party in the long run.
We
are at a critical point in our democracy. Today, money plays an important role
in winning elections. If that changes, then people become more important than
money. Let us make no mistake about what is at stake here: real democracy where
political parties are not mere vote gathering machines, but are vibrant,
democratic organisations that are truly representative of the people, by the
people and, most importantly, for the people.
(Trilochan Sastry is professor at IIM
Bangalore and Founder, Association for Democratic Reforms.)
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