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A flawed order, difficult to implement -MM Ansari
-The Indian Express


In the aftermath of the Central Information Commission's order holding political parties as public authorities for the disclosure of details of political funding, the turf war between members of civil society and the parties has intensified. It is commonly believed that a major source of corruption in the functioning of government can be traced back to the method of funding of parties and elections. The efforts made by the Election Commission have not yielded desirable results, insofar as transparency is concerned. Citizens have therefore resorted to transparency laws.

The scope of the Right to Information Act is largely confined to governmental bodies while other entities, formed by private or voluntary initiatives, remain uncovered, which is why gaining access to information relating to political donations has been an insurmountable task.

In this context, the decision of the CIC, if implemented, will have far-reaching implications for containing corruption. This is, however, not likely to happen for the following reasons.

First, in the case of political parties, there is limited scope for the enforcement of the penalty clauses as per Section 20 (1 and 2) of the RTI Act, through which the CIC imposes monetary penalty and recommends disciplinary action against the public information officer (PIO) deemed custodian of the information. These penalty clauses ensure compliance with CIC orders.

An office bearer of a party, who may also be nominated as PIO, hardly enjoys the privilege of monthly compensations and career progression as government servants do. Therefore, a maximum penalty of Rs 25,000, as provided in the act, cannot be recovered in case of non-furnishing of information. Nor will there be any fear of jeopardising the career of a political worker as a PIO. Likewise, it would be difficult to recover compensation from parties, if awarded to information seekers under Section 19 (8)(b) of the act, on grounds of perpetual harassment for obtaining information. It is alleged that a few office bearers of parties have dubious character and criminal records. If such persons are appointed PIOs, who will dare approach them for accessing information, by putting himself in danger?

Second, the organisational structure of government bodies and that of voluntary associations like political parties is totally different. The RTI Act has been adopted keeping in view government servants, who plan and execute policies and programmes for the welfare of the people. Therefore, a large part of the act, mainly Section 4 that deals with the maximum disclosure of information about a public authority, and Section 8 that deals with exemptions from disclosure, are entirely irrelevant for political parties.

Similarly, there are provisions, such as Section 2(j), which require the public authority to allow scrutiny of the day-to-day affairs and activities. This may not, however, be desirable due to the voluntary nature of such functions. Clearly, the CIC cannot afford to be oblivious to the role of a political party in a democratic country.

Third, it must be admitted that the petitioners, in the instant case, have meticulously collected and compiled data that goes to show that parties have received direct and indirect government support in different forms and are legally covered under various laws governing the activities of parties and their role in the formation of government. The petitioners have also argued well before the commission, which eventually fell into the trap laid by them to deliver a fallacious and flawed order.

While the CIC's order meets the expectations of the petitioners, it remains to be seen whether it can stand the scrutiny of the courts, which will take a final view, if approached. Even if the CIC's decision is upheld by the court, the final battle will be fought in Parliament, which is likely to endorse the collective views of parties.

Finally, with a view to containing corruption through transparency in the functioning of government departments, Section 2(h) of the act has been defined such that public authorities could be easily identified. Those bodies not covered in the definition of public authorities could be asked to furnish the information under Section 2(f), which stipulates that a citizen can seek any "information relating to any private body which can be accessed by a public authority under any other law for the time being in force".

In view of this, instead of holding political parties as public authorities, irrespective of the functions they perform, the CIC could have asked the EC to obtain the desired information under Section 2(f) from the concerned parties and that information could be shared with the requester. Such an order could have served the twin purpose of putting details of political funding in the public domain and avoiding unnecessary legal controversy on whether political parties could be brought within the ambit of the RTI Act as public authorities. An opportunity has been missed.