New Delhi

It was late Monday evening, March 16, 2015, when the much awaited order of the Central Information Commission, landed in my inbox, courtesy the indefatigable Right to Information activist Subhash Agarwal.

This was the final order of the CIC in the case related to bringing the political parties within the ambit of the RTI Act. For someone who has campaigned on this issue, reading through the final judgement copy was a surreal moment. Surreal, because the very statutory authority that delivered the landmark order that political parties were public authorities accountable under the RTI Act was now rather meekly throwing its hands up in the air, having failed to get the parties to comply with its ruling.

It is a judgement that does not bode well for the CIC’s authority, the rapidly eroding public trust in political parties and some of our institutions, the rule of law and, indeed, democracy itself.

Meek abdication

In June 2103, a full bench of the CIC passed a landmark judgement that declared the six national political parties – Bharatiya Janata Party, Indian National Congress, Bahujan Samaj Party, Communist Party of India, Communist Party of India (Marxist) and Nationalist Congress Party – to be ‘public authorities’ that must come within the purview of the RTI Act.

These parties, ruled the CIC, were public authorities not only on account of being "substantially funded" by public money but also as institutions that "directly or indirectly influence exercise of governmental power". It said, in that order, "It would be odd to argue that transparency is good for all State organs but not so good for Political Parties, which, in reality, control all the vital organs of the State."

Twenty two months later, it comes as a rude jolt that the same CIC, that passed the path breaking judgement, proclaims that it "is not geared to handling situations such as the present instance where the respondents have disengaged from the process." Not only have the six political parties not complied with the CIC’s orders to adhere to the RTI Act (by appointing public information officers to deal with RTI requests), they have shown utter disregard to its authority by turning a deaf ear to the repeated summons to appear before it to explain their defiance.

In its final order as it closed the case, the CIC noted that while it was a "wilful non-compliance" by the political parties, it was "bereft of tools to to get its orders complied with." In doing so, the CIC has passed the buck to the Department of Personnel and Training to identify gaps and lacunae in the RTI Act to deal with such non-compliance.

But, are the CIC’s hands as tied as it makes out to be in the final judgement? Not at all, opines Venkatesh Nayak, an RTI activist with the Commonwealth Human Rights Initiative.  "In an earlier instance, in 2009, when the DoPT refused to comply with its order of providing access to ‘file notings’ in accordance with the RTI Act, the CIC issued notice about launching criminal action against the DoPT under Sections 166,187,188 of the Indian Penal Code.These offences invite fines and a prison term from two months to one year. When threatened with legal action, the DoPT fell in line," Nayak wrote.

That it has refused to do so in this instance is an abdication of its responsibility. In doing so, Nayak went on to say, the CIC has "ended up creating an impression that it lacks the power or 'mettle' or 'spunk' or 'spine' to ensure compliance with its orders." It raises several questions on the efficacy of an institution such as the CIC.  As Nayak wrote, "Commissioners who have given this woefully inadequate decision must resign from their offices."

The CIC with its act of spinelessness has not just undermined its own authority but also frittered away a golden opportunity, as it observed in its original order, "to usher in progressively higher level of transparency in the functioning of political parties in general and their funding in particular."

Defying the law

The struggle to bring the political parties under RTI and enforce greater transparency is a classic demonstration of that rare unity that political parties have shown in keeping their collective interests locked from public scrutiny – a unity that parties seldom show in matters pertaining to public interest. In doing so, they have effectively spoken that they are above the law – the very law that they legislated in Parliament and swear to uphold by a solemn oath.

The conduct of the political parties has been brazen throughout the process. Following the original order of June 2013, the then UPA government hastily drafted and tabled the The Right to Information (Amendment) Bill in Lok Sabha, endorsed in unison by all the six parties, designed to exempt political parties from the RTI Act. That Bill was sent to the The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for further public consultation following a massively successful Save RTI campaign by activists and citizens. The bill lapsed with the last Lok Sabha.

In November 2014, following complaints by the original petitioners, the Association of Democratic Reforms and Subhash Agarwal, the CIC summoned the political parties thrice – twice in November 2014 and then, again in January 2015 – to appear before it and make submissions explaining their defiance. Not one representative of a single political party bothered to show up ever. The Congress party deigned to send in a letter though, which, while arguing why political parties were not ‘public authorities’, went on to tell the CIC that it "has expanded its own jurisdiction beyond the letter and spirit of the law, which is ex facie illegal."

Such has been their blatant disregard for the law and its institutions. As  Prof Jagdeep Chhokar of ADR said in the final hearing before the full bench of the CIC,  "This non-show and disengagement of the political parties is an ample proof of disdain for a statutory body like the CIC, which was passed by an Act of the Parliament. This arrogance and defiance is a contempt of the Parliament itself."

Future Course of Action

While the CIC may have frittered away the opportunity to nail the political parties, activists and citizens are not willing to give up the fight just yet. Prof Chhokar says that ADR will go to court asking for action against these six national political parties for non-compliance and contempt of the June 3, 2013 order as well as its implementation.

This struggle is  a demonstration of the diligence of organisations like ADR and individuals like Subhash Agarwal who have persevered over the past 22 months to nail the political parties to shun the opacity around their functioning. Indeed, it was ADR’s submission, where it argued  with exhaustive data around the "substantial funding" of political parties that led to the original order of the CIC in June 2013 to declare political parties as public bodies. It is also the struggle of the thousands of activists and citizens at home and abroad that campaigned and resisted against the unscrupulous ways of the political class in thwarting the law.

Above all, the RTI Act was the culmination of the struggle of thousands of poor peasants and workers who first demanded information from the state on their wages. Their struggle cannot go in vain. With constant threats to the RTI Act from a government that promises ‘Quest for Transparency’ but has not bothered to appoint a Chief Information Commissioner for the last seven months, it is indeed time to Save RTI once again.

"Beware of all politicians at all times, but beware of them most sharply when they talk of reforming and improving the constitution," wrote HL Mencken, in The Constitution. To this, one may add, beware of politicians when they unite, for most often it is to save their collective skins.

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