A legal activist questions the validity of political parties going out of RTI ambit, while citizen activists in Mumbai, Delhi, Hyderabad and other cities hold public protests

The beginning of this week has witnessed vociferous protests by leading Right to Information (RTI) activists across the country, against Indian government’s amendmentsto exclude political parties from the RTI Act.

Backdrop:

In a release issued by Press Information Bureau (PIB), on 2^nd August, the government tries hard to explain that, “the political parties are registered with the Election Commission under the provisions of section 29A of the Representation of the People Act, 1951… which provides for dissemination of information relating to political parties, candidates and donations.’’

It further states there are enough provisions in the Representation of the People Act, 1951 which contains “sufficient provisions in the Act to deal with each and every aspect of financing, its declaration and punishment for filing false affidavit and all such information is made available to the public through the website of the Election Commission.’’ The release also says that since political parties claiming tax exemptions have to file income tax returns, information can be sought by the public under the RTI Act, if the information is in public interest. (detailed press note of PIB below the story).

Exceptions: CPI and AAP oppose amendments:

Communist Party of India (CPI) is an exception amongst the six big political parties, as it has agreed to come under the RTI Act. While speaking at a public meeting in Delhi, D Raja, the party’s leader and a member of Parliament (MP), said, “During elections, given the unholy nexus between capitalists and political parties, there is no doubt that RTI is an invaluable weapon to fight fraudulent and corrupt practices” and he went on to add that the left parties have in the past always opposed all amendments to the RTI Act.  

The upcoming political party, Aam Aadmi Party (AAP) has also opposed the government’s move. On its website, the party says, “The root cause of corruption is political corruption. And political corruption begins with sources of political funding. Transparency in political funding is the need of the day. If Political parties are really serious to fight corruption, they should offer total transparency in their funding. On its part, Aam Aadmi Party has always strived to maintain transparency in all its dealings. It has put up its donors list on the party website. We request all parties to bring in such transparent ways in their functioning so that common man starts believing in politics and politicians.’’

Citizen Protests:

Mumbai: A public meeting was held in Mumbai at the St Xavier’s College Hall at Dhobi Talao on 6^th August that was attended by over 350 citizens. Leading RTI activists, media persons and eminent citizens – Shailesh Gandhi, Fr. Frazer, Julio Ribeiro, Bhaskar Prabhu, Sucheta Dalal and Dolphy D’souza spoke on the occasion. Mr Gandhi, the former Central Information Commissioner (CIC) said that every citizen should call MPs and lodge their protest (against the amendment in RTI Act). “"The Parliament has a right to frame a law. But once they've made it, to change it for their benefit is completely third-rate and unacceptable," he said.

Mr Ribeiro, the former commissioner of Police at Mumbai, said citizens are entitled to know where parties got their funding from as many problems arose from the use of black money in elections. “Parties have said that they are not public bodies. Why don't they go to court and prove it?” the supercop said.

Suggestions that came out during the meeting, include sending emails to Congress and United Progressive Alliance (UPA) chairperson Sonia Gandhi, releasing petitions through social media sites and holding a series of protests across the city.

Delhi: A release from National Campaign for People's Right to Information (NCPRI) says,  “Over 500 people from Rajasthan, Madhya Pradesh, Jammu and Kashmir, Gujarat Bihar, UP, Haryana other than Delhi poured into the capital to not only protest against RTIamendments, but also to demonstrate the growing groundswell for the anti-amendment protest. They strongly condemned the proposed move by all political parties to amend the RTI Act. They opposed the undue haste with which all major political parties are seeking to amend the RTI Act, without any consultation and dialogue with the people.

Aruna Roy, leading RTI activist, emphasized that this “anti-people move which has sparked protests in different parts of the country will soon explode into a nation-wide mass protest.”

The online campaign supported by the website Change.Org has within a few hours got nearly 25,000 people signing the petition against the amendments in the RTI Act. The protests have gone global and viral with non-resident Indians (NRIs) from Washington demonstrating and 30 other cities calling several MPs urging them to not push this amendment without due consultation with people.

“It is significant that out of all the six parties that have been declared by the Central Information Commission (CIC) to be ‘public authorities’ under the RTI Act, with the exception of the CPI, all others stayed away from the Jan Manch, organised by the National Campaign for Peoples’ Right to Information (NCPRI).’’

Besides, is it legal for the cabinet committee to put political parties out of RTI ambit?

RTI activist Sunil Ahya argues, “Given the said CIC decision, if they are now able to establish themselves as private authorities or entities in a court of law, then RTI Act in its present legislated form does not apply to them, and the matter rests there for the moment. Until then, they continue to remain established as public authorities, and as such, they happen to come under the ambit of the RTI Act.

“Political parties are either private authorities or public authorities, I am not aware if there is any middle path available to them. They are entities with certain natural attributes, and they would not be able to change or redefine those inherent natural attributes, for example, there is no way they can redefine themselves as a military or security or an intelligence organization,” he said.

Ahya asked, “If by virtue of their access to legislators they make amendments, whereby, they take themselves outside the ambit of the RTI Act, whereas other public authorities continue to remain within the ambit of the RTI Act, then the question is, would they not be enacting a law which violates Article 14 of the Constitution of India titled ‘Equality Before Law’?” The law lays down that ‘the State shall not deny to any person equalitybefore the law or the EQUAL PROTECTION OF THE LAWS within the territory of India’.  

“Equal Protection of Law” means if political parties need to be protected because their functioning may get affected by virtue of coming under the RTI Act, then similarly other public authorities also need to be protected because their functioning too gets affected in some way or the other. If the functioning of political parties is affected, then so is the functioning of other Public Authorities, at least that is what the preamble of the RTI Act suggests,’’ he said.
 

“If political parties get exempted, leaving other public authorities under the ambit of the RTI Act, then the Act, in effect would be contravening Article 14 of the Constitution by way of a legislative enactment, which by a reasonable inference would mean an indirect amendment of the basic structure of the Constitution, ’’Ahya added.

RTI activist, Maj Gen Sudhir Jatar (retd) said, “In South Africa, the Promotion of Access to Information Act, 2000 (PAI Act) is applicable to private bodies also. In the court case regarding applicability to political parties [IDASA & Others Vs ANC and Others 2005 (5) SA 39 CPD], the court held that political funding is not for a public purpose because parties pursue private interests of their members even if they may ultimately govern the country(which is clearly a political purpose). The court also held that the difference between private and public bodies is, by no means, impermeable. It held that the PAI Act, 2000 is not applicable to political parties.

I had quoted the above statement only for information and not as a precedent, because PAI Act of South Africa and RTI Act of India are different as compared to other countries and hence, the interpretation will not be the same.  The aim of the RTI Act is to ultimately improve governance. It is the political parties that are mainly responsible for bad governance but are not accountable for it. Since money is the root cause, as seen again in Durga Shakti Nagpal’s case in UP, there is more urgency to control political finance.

Why not put pressure on corporates?

Mumbai based RTI activist Krishnaraj Rao along with 10 other activists have appealed to leading industrialist Anil Ambani and others to make his donations to public parties available in the public domain.

Krishnaraj Rao argues that, “Political parties have always succeeded in putting a veil over their funding, despite all rules and regulations. The legal bribery known as ‘campaign contributions’ (and routine contributions to individual members of legislative assembly-MLAs and MPs), turns party chiefs, ministers and legislators into agents of the Tatas-Birlas-Ambanis, big builders, hoteliers, tanker-lobbies and sand-mining mafias. Our votes become meaningless; our democracy hijacked by ‘donations’.”

“Corporate lobbyists are using such ‘donations’ to arm-twist the government to relax environmental and health norms, enabling commercial activities such as putting up 75% unauthorized cell phone towers and selling harmful drugs banned by USFDA,” he said.

Government’s press release on the amendment to the RTI Act, 2005 The Union Cabinet has approved introduction of a Bill in the coming session of the Parliament to amend the Right to Information Act, 2005, to exclude the political parties from the definition of Public authority for the purpose of the Act. The Central Information Commission (CIC) in its decision dated 03.06.2013, has held that the political parties, namely, AICC/INC, BJP, CPI(M), CPI, NCP, and BSP are public authorities under Section 2(h) of the RTI Act. While deciding that the said political parties are public authorities, the CIC has relied mainly on the grounds that there is substantial (indirect) financing of political parties by the Central Government and they perform public duty. The political parties are registered with the Election Commission under the provisions of section 29A of the Representation of the People Act, 1951. Under this section any small group of persons, if they so desire, can be registered as a political party by making a simple declaration under sub-section (5) of section 29A. With reference to the political parties, detailed provisions exist in the Representation of the People Act, 1951 which provides for dissemination of information relating to political parties, candidates and donations. The said Act, inter alia, provides for – • Registration with the Election Commission of associations and bodies as political parties (section 29A) • Political parties entitled to accept contribution (section 29B) • Declaration of donation received by the political parties (section 29C) • Declaration of assets and liabilities (section 75A) • Account of election expenses and maximum thereof (section 77) • Lodging of account with the district election officer (section 78) • Penalty for filing false affidavit etc. (section 125A) The above provisions of the Representation of the People Act, 1951 indicate that there are sufficient provisions in the Act to deal with each and every aspect of financing, its declaration and punishment for filing false affidavit and all such information is made available to the public through the website of the Election Commission. Under section 13A of the Income-tax Act, 1961, the political parties claiming exemption from tax are required to file their return of income before the due date before the tax authorities along with audited accounts; and form 24A prescribed under section 29C of the Representation of the People Act, 1951 read with Rule 85B of the Conduct of Election Rules, 1961 declaring the list of persons making donations to the political parties exceeding 20,000/- rupees. As per section 138 of the Income-tax Act, any information with the Income-tax Department would be ordinarily held confidential, but can be made public, if in the judgment of the Commissioner of Income-tax, it serves public purpose. Under section 10A of the Representation of the People Act, 1951, for failure to lodge the account of election expenses as per the requirement of law, the defaulting candidate may be disqualified by the Election Commission for three years from the date of the order of disqualification. Section 29C of the Representation of the People Act, 1951, provides that each political party shall submit report to the Election Commission (before filing its income-tax return) regarding all contributions in excess of 20000/- rupees received by it in a financial year and failure to submit this report will deprive them of the tax benefit. Further, the candidates are required to file affidavit along with their nomination papers giving the annual income of the candidate and filing of false affidavit attract punishment for furnishing wrong information. The RTI Act was enacted to provide for an effective framework for effectuating the right of information recognised under Article 19 of the Constitution. The RTI Act was enacted to ensure greater and more effective access to information by making the Freedom of Information Act, 2002 more progressive, participatory and meaningful. The definition of public authority given in clause (h) of section 2 of the RTI Act is well defined to include only such authority or body constituted by or under the Constitution or by any law made by Parliament which is substantially financed directly or indirectly by funds provided by the appropriate Government. The political parties do not fall within the parameters of the definition of public authority given in the RTI Act, as they are only registered and recognised under the RP Act, 1951.

(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)