The Ambit of RTI and Political Parties- A Critical Analysis

 The Author of this blog is Vikash Kumar, student of 5th year, BA LLB (H), School of Law, UPES, Dehradun 

Overview of the RTI Act

The four major aspects of good governance are ‘Transparency’, ‘Accountability’, ‘Predictability’& ‘Participation’ and Right to Information (RTI) Act works as catalyst to achieve the same. Because of the RTI Act, every person is entitled to seek information from the government authorities and this also includes inspections of the documents and seeking certified copies of the documents.[1]The major objectives of the act is to eradicate corrupt practices by promoting transparency & accountability and most important to create a legal framework that ensure access of information to each and every class of the society. This legislation was the outcome of many grass-roots & civil society movements from Mazdoor Kisan Shakti Sangathan to National Campaign for People’s Right to Information and many mores. Apart from the different movements from all over India, different central government Committee like H.D. Shourie Committee and different council like National advisory council in 2004 also played pivotal role for the enactment of the RTI Act.[2]

Right Based Enactment

Furthermore, one of the unique feature of the act is that this is not only enacted because of the pressure by the society including all the movements & the protests all over India but this act is also a right based enactment. Let’s try to understand that how this is a right based enactment, initially, the Hon’ble Apex Court in 1975 in the case of State of Uttar Pradesh v. Raj Narain[3]stated that ‘Right to Know’ is derived from the ‘fundamental right to freedom of speech and expression’. The court in this judgment said a healthy democracy cannot exist, if the citizens doesn’t have the right to participate in the public functioning. The court in this case also highlighted that right to information is not an absolute rights but subject to some reasonable restrictions. Then in 1981, the Apex Court reiterated the same legal principle in S.P. Gupta v. Union of India[4]i.e. ‘right to know’ is implicit under article 19(1) of the Constitution of India and they are subject to some restrictions like National security. Again in 1997, the Hon’ble Apex Court in the case of Shri. Dinesh Trivedi, M.P. & Ors. v. Union of India & Ors.[5],while emphasizing the same principle said that no healthy democracy can sustain without accountability and for accountability unrestricted flow of information is very important and ‘right to know’ is sine qua non for every modern constitutional democracy. The court in all the above cases very logically justified that why it comes under article 19(1)[6] as if any citizen wants to exercise his right to freedom of speech or expression then in these case the citizen must be aware of the existing circumstances and on the existing circumstances citizen can seek information from the government authorities. This shows that how right to know is tangled in right to freedom of speech and expression and by virtue of these Supreme Court judgments we can also consider ‘right to information’ as a fundamental rights which is subject to certain reasonable restrictions. This is why we also called this legislation as a ‘right based enactment’.[7]

Political Parties and the RTI

In modern democratic era political parties cannot merely considered as organization contesting elections but also an active link between the citizen and the government. In democracy political parties are the important stakeholders and have the potential to influence the policies of the government. Right now, in India there is a debate that whether political parties comes under the ambit of RTI. Though, in Indian politics the political parties are never together but on the issue of RTI, they all firmly stand against the intervention by RTI as they believes this will affect the internal affairs of the parties and creates issue in the smooth functioning.

RTI & Political Parties Conflict

Lots of actions taken after the introduction of RTI act to include the political parties under the ambit of RTI and few of them are mentioned here. The first landmark event in this is on 29 Oct, 2010 when ‘Association for Democratic Reforms’ (ADR) filled an RTI against the political parties seeking the details of donations/contributions. Interestingly out of six national political parties only 1 submitted the details and rest of them denied. Aggrieved by this, they approached CIC and in the judgment on 03 June, 2013, the bench said that political parties will come under the ambit of RTI.[8]Then in 2013, amendment bill was introduced in Lok Sabha which was referred to Parliamentary Standing Committee. In 2014 Commission asked the parties to appear in respect to the ADR case judgment but the parties didn’t appear. In 2015, ADR approached the Supreme Court and other complaint in this regards is also clubbed together for hearing, lastly, a plea filed by BJP leader Ashwini Upadhyay filed a petition in Supreme Court to make the political parties under the ambit of RTI.[9]

Contention in the Support of RTI for Political Parties

Someone rightly said that any sort of secrecy is against the principle of democracy. Political parties who fulfilled lots of democratic duties but still not in the ambit of RTI in practice. First we will legally analyze the provision and will find out whether the political parties comes under RTI or not. Then in the second part we will discuss the funding issues with regard to the political parties.

The Ambit of Public Authorities

The RTI Act, 2005 in section 2(h) defines public authority and anyone can seek information only from the public authorities and apart from the public authorities no else is answerable under this act. In case of Political Parties, section 2(h)(d) (ii)[10] comes in the picture which talks about ‘non-government organizations which is substantially financed directly or indirectly by the appropriate government. The political parties at many instances funded by the government, like;

·     The allotment of the land in the national capital for political party’s headquarters. In 2019, the Central Government allotted additional 2 acres land in the New Delhi for BJP headquarters at a concessional rate.[11] The allotment of the land in the State capital is also done and sometimes government allot the land at concessional rates as per the procedure.

·   Providing facilities like accommodations/Bungalows at concessional rentals, many of times political parties head as well as spokesperson and other prominent leaders avail these facilities which was indirectly funded by the government. 

·     The provision of total tax exemption as provided by the Central Government to political parties as per different provisions of the Income Tax Act, 1961. Under this political parties are exempted for the payment of income tax for the income of donations/contributions, funding by Indian Companies and many others.[12] Also, few other subsidies are also provided by virtue of Finance Act, 2003.[13]

·     The allotment of free airtime on Doordarshan and All India Radio, as we know that these two are under government management and during elections parties are allotted few slots without paying any charges. These instances clearly justified that how political parties are funded by the government indirectly.

The Issue of Political Parties Funding

The question is if a common has the duty to declare about his income of even a single penny then why the political parties with income of crores is immune and unaccountable in the modern democratic phase. As per 29C of the ‘Representation of People Act, 1951’, all the political parties is under obligations to declare the donation amount received in access of twenty thousand rupees.[14] But, in reality the political parties declare as per their discretion.

The total income of the six political parties between FY 2004-05 and FY 2014-15 was 9278.3 Crores and in this around Rs 4453 Crore were voluntary contributions/donations. Interestingly, in this amount political parties only declare the source of Rs 1405 Crore donations and evaded declaring the details of other sources. Apart from this almost 34% of the income was generated by ‘Sale of Coupon’ which is 3161 Crores in this case. In this the political parties only issue coupon in respect of the donations given to the donors. Even, in this lots of money sources cannot be traced if the receipt has not been issued. As per the reports in 11 years almost 71 percent of the income which is equal to 6612.42 Crores source is unidentified.[15] Furthermore in 2014, The Hon’ble Delhi High Court finds few national parties guilty of receiving foreign funding which violates different provisions of ‘Foreign Contribution (Regulation) Act(FCRA).[16] The objective of the FCRA is to prohibit funding of political parties by foreign sources.[17]

Many expert believe that there is the possibility of quid pro quo arrangement between the corporates and the political parties. In which the corporates transfer huge amount of money as donations to the political parties and in return after they form their government they return their favour by providing government tenders, different allocations & many others. Apart from this it was also alleged that many people converts their black money by giving donations to the political parties because there is no accountability of these incomes in India.

Conclusion

These quid pro quo structures has lots of potential to influence the government policies in favour of the capitalist instead of general public in larger interest. As we have seen in the last few years that many government allotted thousand acres of land and even forests for infrastructural development to big corporate houses. In 1993, Vohra Committee also emphasized that how money can be used to affect free and fair elections and because of this criminals are entering in Parliament as members which means law breakers are now law makers in India.[18]Ultimately, the political executives control bureaucracy in India. Even during the time of demonetization Bharatiya Janta Party bought land of crores in different parts of India for his party’s offices and lots of untraced amount was involved in these transactions.[19]There is an urgent need to make the political parties accountable because directly or indirectly they all are using public resources for their functioning.  

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[1]Venkatesh Nayak, “The Right to Information Act 2005- A Summary”,Commonwealth Human Rights Initiative,Oct, 2016,available at<https://www.humanrightsinitiative.org/programs/ai/rti/india/national/rti_act_2005_ summary.pdf> (last visited on Dec 07, 2020).

[2]Vaibhav, “Right to Information Act, 2005: A Revolution”, CIC (2019),available at<https://cic.gov.in/sites/default /files/Vaibhav%20Mittal.pdf> (last visited on Dec 07, 2020).

[3] 1975 AIR 865; 1975 SCR (3) 333.

[4] AIR 1982 SC 149, 1981 Supp. (1) SCC 87, 1982 2 SCR 365.

[5](1997) 4 SCC 306.

[6]The Constitution of India, art. 19(1).

[7] Kartik, “Right to Information Act: A Multi-Dimensional Approach towards Good Governance”, Academike,(May 2016), available at<https://www.lawctopus.com/academike/right-to-information-act/> (last visited on Dec. 12, 2020).

[8] Priscilla, “Political Parties yet to comply with RTI Act”, The Hindu, (Mar. 21, 2019), available at<https://www.thehindu.com/news/national/political-parties-yet-to-comply-with-rti-act/article26601174.ece> (last visited on Dec 15, 2020).

[9]Shravani Nag, “Should political parties come within the ambit of the Right to information act”, Central Information Commission, (2019), available at<https://cic.gov.in/sites/default/files/MAIN%20DRAFT%20%281%29.Pdf> (last visited on Dec. 16, 2020).

[10]Right to Information Act, 2005 (Act 22 of 2005).    

[11] Nidhi Sharma, “BJP gets another 2 acres for headquarters at DDU Marg”, The Economic Times, (Mar. 19, 2019), available at<https://economictimes.indiatimes.com/news/politics-and-nation/bjp-gets-another-2-acres-for-headquarter s-at-ddu-marg/articleshow/68473886.cms?from=mdr> (last visited on Dec. 16, 2020).

[12]The Income Tax(Amendment) Act, 2016 (Act 48 of 2016).

[13]The Finance Act, 2016 (Act 28 of 2016).

[14]The Representation of People Act, 1951 (Act 43 of 1951).

[15]Vaishali Rawat, “why there is an urgent need to bring political parties under the RTI ambit”, Wire, (Feb. 07, 2017), available at<https://thewire.in/politics/why-there-is-an-urgent-need-to-bring-political-parties-under-the-ambit-of-rti> (last visited on Dec. 17, 2020).

[16] Abhinav Garg, “Delhi HC finds BJP, Congress guilty of receiving foreign funding”, the Times of India, (Mar. 29, 2014),available at<https://timesofindia.indiatimes.com/news/Delhi-HC-finds-BJP-Congress-guilty-of-receiving-foreign-funding/articleshow/32880140.cms> (last visited on Dec. 16, 2020).

[17]The Foreign Contribution (regulation) Act, 2010 (Act 42 of 2010).

[18]Nilesh Ekka, “Electoral Reforms in India- Issues and Reforms”, Association for Democratic Reforms, (Apr. 21, 2018),available at<https://adrindia.org/sites/default/files/Electoral_Reforms_in_India_Issues_and_ Reforms_by_Nilesh_ Ekka.pdf> (last visited on Dec. 17, 2020).

[19]FE Online, “Demonetisation: BJP bought land worth crores of rupees a week before note ban”, Financial Express, (Nov. 25, 2016),available at<https://www.financialexpress.com/india-news/demonetisation-bjp-bought-land-worth-crores-of-rupees-a-week-before-note-ban/455728/> (last visited on Dec 17, 2020).