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Defying RTI, undermining democracy -Trilochan Sastry
-The Hindu

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.)