Political parties & RTI: This political hat is an old one

Jagdeep S. Chhokar

KEEPING it tight under the political hat (July 12, 2016) is actually old hat! In addition, it is also a case of selective quotations. Referring to a decision the Central Information Commission (CIC) gave “about three years back” (on June 3, 2016, to be precise), the piece says: “As per this order, all the national political parties have come under the ambit of the RTI Act.” Given that it later engages in legal nuances, this statement is not really correct. It goes on to say that: “The operating part is that ‘we hold that INC, BJP, CPI (M), CPI, NCP and BSP have been substantially financed by the Central Government under Section 2(h) (ii) of the RTI Act’.” The legal nuance is that the order held “INC, BJP, CPI (M), CPI, NCP and BSP” to be whatever they are and not “all the national political parties” to be whatever they were. The importance of this distinction is that today, four of these political parties are not “national political parties”, but they are still governed by the order.

The second instance of verbal jugglery to say that the “operating part" of the order is the one holding the six parties to "… have been substantially financed by the Central Government.” It is true that is the part of first sentence of para 92 of the order but the para ends with “…it is held that AICC/INC, BJP, CPI(M), CPI, NCP and BSP are public authorities under section 2(h) of the RTI Act.” I will leave it to the reader to judge whether the opening sentence of a paragraph is the “operative part” or the closing sentence. Now comes the most insidious part. And this requires a somewhat detailed explanation. The second paragraph of the piece says, inter alia, “The operating part is that 'we hold that INC, BJP, CPI (M), CPI, NCP and BSP have been substantially financed by the Central Government under Section 2(h) (ii) of the RTI Act. The criticality of the role being played by these political parties in our democratic set up and the nature of duties performed by them also point towards their public character, bringing them in the ambit of section 2(h). The presidents/general secretaries of these political parties are hereby directed to designate CPIOs and Appellate Authorities at their headquarters in six weeks time. The CPIOs so appointed will respond to the RTI applications extracted in this order in four weeks time'.”

The quotation in the above paragraph has been crafted from paragraphs 92 and 93 of the CIC's order. 

While it is not appropriate to guess the reasons for such deliberate omissions, one possibility could be that mentioning the “The constitutional and legal provisions discussed herein above" might not have gone well with assertions such as "The observation of the CIC regarding the role of the political parties is neither legal nor defined under RTI Act.”

The reality is that the CIC declared the six political parties as public authorities under the RTI Act because they fulfilled the four conditions given in the definition of a public authority given under section 2(h) of the RTI Act. Being “substantially financed” by the government is just one of those conditions. Others are exercise of constitutional authority (under Schedule 10 of the Constitution of India), the requirement of being registered under a “law made by Parliament” (Section 29-A of the Representation of the People Act, 1951), and the claim of working in and for public interest. It was the combined effect of the four reasons that made the CIC declare the six parties as public authorities. Now to the “old hat”. The bogey of the Supreme Court decision in Civil Appeal no. 9017 (actually the Thalappalam Service Cooperative Bank ltd. and others vs State of Kerala and others) has been raised often. Suffice it to say that this decision does not apply to political parties at all because it has been given specially in the context of cooperative societies. The glaring difference between cooperative societies and political parties is that the former are constitutional bodies and the latter are not. Cooperative societies have been specifically included in the Constitution under the Constitutional (97th Amendment) Act, 2011, which received the assent of the President on 12.01.2012, notified in the Gazette of India on 13.01.2012 and came into force on 15.02.2012. The 97th Amendment also amended Article 19(1)(c) of the Constitution, to make joining cooperative societies a fundamental right of all citizens. Cooperative societies also find mention in Articles 43-B, and 243ZH to 243ZT of the Constitution. In addition, they are listed as a state subject, in entry 32 of list I of the Seventh Schedule of the Constitution of India. How one wishes the same level of attention had been given to political parties in the Constitution!

Continuing with the bogey of the “Supreme Court decision in Civil Appeal no. 9017”, the same decision also says in Para 51, well after discussing the substantial funding issue,”All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the State Information Commission can examine the same and find out whether the Society in question satisfies the test laid in this judgment.” Applying this logic to political parties will require examination of the case of each political party, and that is exactly what the CIC did before it came to its 2013 decision.

And finally, the same Supreme Court decision says, in para 53, that if “the larger public interest justifies the disclosure of such information,” the Registrar of Cooperative Societies should disclose that information with “reasons (being) recorded in writing.”

The question now arises that even IF one accepts the contention that: “The observation of the CIC regarding the role of the political parties is neither legal nor defined under RTI Act” put forward in the Keeping it tight under the political hat piece, what would be possible remedies for political parties affected by the June 03, 2013 decision of the CIC? Two options suggest themselves. They could request the CIC to review its decision or they could approach the courts to declare the decision null and void. It is worth pointing out that the affected political parties did not do anything at all and merely ignored the CIC's decision. The original petitioners have now moved the Supreme Court for implementation of the CIC's decision. It is now up to the Supreme Court to decide if the law of the land applies to political parties or not.

The writer is a former Professor, Dean  & Director in charge of the IIM, Ahmedabad.