Source: 
The Tribune
http://www.tribuneindia.com/2013/20130628/edit.htm#6
Date: 
28.06.2013
City: 
Chandigarh

If a candidate has to reveal, why not parties
The right to vote involves the right of a citizen to know everything about the candidates to enable him to make the right choice. It only stands to reason if the right also covers the political parties they represent; therefore the recent order bringing parties under the RTI Act. 
Virendra Kumar

WHETHER political parties are obligated to furnish information desired and demanded by citizens under the Right to Information Act, 2005, (RTI Act) is not a matter of debate. This is so for the simple reason that by virtue of Section 2(h)(d)(ii), a political party, being a non-governmental organisation, which is “substantially financed, directly or indirectly, by funds provided by the appropriate government,” falls squarely within the ambit of “public authority” to which the RTI Act is applied.

Moreover, when all political parties without exception proclaim that their singular objective is to serve society through their democratically elected representatives or otherwise, there remains no reason for not providing the information sought by citizens under the Act, which has been concretely designed to empower them to usher in transparency and accountability in the functioning of our democratic polity.

Precipitation of the issue

Two social activists sought information from certain national political parties about their sources of funding, names of donors, mode of spending money, choice of candidates for election, etc. However, they failed to get any response. This prompted them to approach the Central Information Commission (CIC) for seeking directions to the parties to furnish the information as they were obliged to do under the RTI Act.

The Full Bench of three commissioners, including the Chief Information Commissioner, in their unanimous decision of June 3, 2013, held that in view of the provisions of Section 2(h) of the Act the six national political parties under reference — the Congress, BJP, NCP, CPI-M, CPI and the BSP — clearly fell within the ambit of “public authorities”, and, therefore, were answerable to citizens under the Act.

This order has evoked a mixed response from political parties, with most of them criticising it. Is this application of the provision of Section 2(h)(d)(ii) of the RTI Act to political parties in any way far-fetched or otherwise unwarranted? Isn’t it true that all such parties are claiming exemptions in matters of income tax? Isn’t it also a verifiable fact that at the time of elections all such parties seek and enjoy free air time to propagate their ideas and ideologies on All India Radio and Doordarshan that are wholly set up and supported by the State? Don’t all such extended facilities and privileges amount to substantially contributing to indirect financing from the government in the name of serving society and our polity?

Criticising the order of the CIC for extending the description of “public authority” to “political parties” is erroneous or misplaced. Political parties have said that putting them into the domain of the RTI Act represents an “adventurist approach” damaging democratic institutions; or amounts to “serious infringement on inner-party functioning”; or undermines “the role of political parties in a parliamentary democracy”; or “strains credibility” of the political system. All such criticism of the CIC’s order is really not of the construction of the ambit of “public authority” vis-à-vis “political parties”.

In this respect, it would indeed be instructive if the debate revolves around whether or not political parties should fall within the exemption clause, disabling the citizens to seek probing information from them.

Exemption from disclosure

Under the realm of exemptions under the RTI Act, it specifically relates to a public authority’s three main concerns of ‘efficient operations’, ‘optimum use of limited resources’ and ‘preservation of confidentiality of sensitive information’. These have been concretely crystallised in various provisions of Section 8 read with Sections 9-11 of the Act. Section 8 deals with 10 categories of information contained in Clauses (a) to (j) that are exempt from disclosure. All these categories, however, need not be construed as absolute exemptions. A close reading of these would reveal that they essentially bear differential character, depending upon the objective sought to be achieved by each one of those exemption clauses.

A public officer, for instance, is not obliged to give information if its disclosure prejudicially affects the sovereignty and integrity of India, security, strategic, scientific or economic interests of the State, relation with other foreign state or lead to incitement of an offence. Against such absolute exemptions, disclosure of information available to a person in his ‘fiduciary relationship’ is only a conditional exemption, which means that information could be disclosed by the competent authority if he is satisfied that disclosure is desirable in the larger public interest (as for instance, the disclosure of a patient’s infectious disease by a doctor to some nodal agency keeping a watch over such diseases).

Whether a political party is entitled to seek exemption of non-disclosure on any of such counts is the issue that may be deliberated collectively by all parties. In fact, such a seminal suggestion has been made by one of the national political parties: “Given the serious implication of this order of the CIC for the political system and parliamentary democracy, the matter should be discussed by the government with all political parties so that suitable steps can be taken to preserve the integrity and the role of political parties in a democratic political system.”

Constitutionality

Whatever may be the outcome of the ensuing debate, its complexion has to be constitutionally consistent. The right of a citizen to elicit information on election candidates of various political parties is no more just a simple statutory right granted to him by the courtesy of the State (read Parliament), but a fundamental right guaranteed under the Constitution.

Such a remaking transformation took place when the three-Judge Bench of the Supreme Court in the landmark judgment in “Association for Democratic Reforms (2002)” read the right to vote of a citizen as his constitutional fundamental right. This was accomplished by treating the statutory right to vote as an integral part of the fundamental right to speech and expression under Article 19(1)(a) of the Constitution. The right to vote involves the right of a citizen to know everything about the candidates that would enable him to make his right choice.

The Supreme Court Bench invoking its special powers under Article 142 of the Constitution specifically directed through the Election Commission of India that all candidates should furnish information on all such counts that would reveal their criminal past; pending cases in which he is accused of an offence punishable with imprisonment for two or more years; details of his assets (immovable, movable, bank balance, etc), including those of his spouse and dependents; particulars of his liabilities, if any, which he owed to any public financial institution or government; and his educational qualifications. Such an arrangement would stay put till Parliament moved in to consider and enact the judicial directive through appropriate law.

As a sequel to the directive, the Central government immediately moved in and promulgated the requisite Ordinance, which was soon repealed and replaced by the Representation of the People (Amendment) Act, 2002, that came into force with retrospective effect. The legislative response is contained in Section 33-A and Section 33-B of the amended Act of 1951.

A bare comparison of the statutory provisions contained in Sections 33-A and 33-B of the Act of 1951 with those of the directives of the Supreme Court in “Association for Democratic Reforms (2002)” reveals that only some and not all of aspects of the right to information raised by the court are incorporated by legislature.

The aspects relating to amassing of assets and incurring liabilities, for instance, are clearly excluded, for it is specifically stated in Section 33-B that no candidate shall be liable to disclose or furnish any such information which is not required to be disclosed or furnished under the Act despite the directions issued by the court to the contrary. This means that Section 33-B of the Act of 1951 “purported to neutralise the effect of directions issued by this Court” in Association for Democratic Reforms (2002).

This led to a challenge to the constitutional validity of the two added sections in another three-Judge Bench of the Supreme Court in the “People’s Union for Civil Liberties (PUCL) (2003)” case. In this case, the Supreme Court, inter alia, declared Section 33-B as unconstitutional, being in violation of Article 19(1)(a) of the Constitution. The Supreme Court Bench reiterated the directions given by it earlier in the “Association for Democratic Reforms” and “directed the Election Commission to issue revised instructions keeping in view the observations made in the judgment delivered by this Court.” In particular, the Supreme Court held that “the order issued by the Election Commission relating to the disclosure of assets and liabilities will continue to hold good and be operative.” This indeed is the constitutional status of the right of a citizen to receive all relevant information from the election candidates, and their concurrent obligation to reveal the same.

Problem of consistency

In view of this back-up, is it constitutionally consistent to claim duality and reconcile the two conflicting propositions? On the one hand, the candidates set up by a political party are obliged to reveal information on all such counts that are crucial to the decision-making of a citizen in the exercise of his right to franchise. This is the constitutionally established proposition. How come, on the other hand, asking similar searching questions to the candidate’s political party would be destructive of its democratic functioning? More so when a ‘political party’ is simply ‘an association or body of individual citizens of India registered with the Election Commission under Section 29A of the Representation of the People Act, 1951’. Jurisprudentially, a political party carries no separate or distinct ‘personality’ of its own, representing a rights and duties bearing unit, implying thereby that the rights and liabilities of a political party are no other but only those of its associating members.

A wider ambit

In the enactment of the RTI Act, the underlying objective of Parliament was ‘to contain corruption’ in the body politic by making the system of governance transparent and accountable. Consequently, the right to information, unlike fundamental rights under the Constitution, is made not simply to benefit the individual as an individual but more to benefit society at large. This shift of focus from ‘individual’ to ‘society’, showing the primacy of ‘public interest’ over ‘individual interest’, is manifest in the provisions of Section 6(2) of the Act of 2005, whereby an applicant seeking information is not required to “give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.”

Incorporation of any provision of sheltered status to a political party at any level — legislative, executive and/or judicial— continues to remain informed by the constitutionally proclaimed principle of “paramountcy of the democratic ideal”. That alone would strengthen the resolve of the aam admi in the system of democratic governance which is premised on: “Hum jane-ge, hum huk se jane-ge/ Kya hua, kya na hua, hum maloom karen-ge/ kaise hua, kahan hua, hum hak se jane-ge” (We shall know, and we shall know by right/ What happened, what didn’t, we shall find out/ How it happened, where it happened, we shall find out by right).

Why RTI Act applies to political parties

* Political parties receive several benefits and privileges at public cost. Therefore, they are ‘public authorities’.

* All election candidates have to reveal their criminal past; assets; liabilities; educational qualifications.

* A ‘political party’ is simply ‘an association or body of individual citizens of India registered with the Election Commission under Section 29A of the Representation of the People Act, 1951’.

* The rights and liabilities of a political party are, therefore, no other than those of its associating members.

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