With the commencement of the Right to Information Act, 2005 (‘Act’), greater and more effective access to information was ensured. The main objective of the Act is to empower citizens, ensure transparency and accountability in the functioning of the government. The Act can be used only to acquire information regarding public authorities.
Therefore under the Act, the definition of “Public Authorities” is crucial, because it determines the purviews of the Act. By applying the definition of public authorities, political parties are being brought under the ambit of the Act. Recently, the Central Information Commission (CIC) was one of the first to try and bring six major political parties under the Act. It based its actions on certain grounds through which political parties may be construed as public authorities.
Political parties as Public authorities
The CIC claims that the political parties are indeed public authorities in disguise. And to support this claim of theirs, they referred to the definition of public authorities as provided under Section 2(h) of the Right to Information Act.
Firstly, it was based on the fact that the political parties are engaged in public works. It was held that, political parties are constantly involved in activities related to governance and socio- economic development of the country, like all other public authorities. Therefore it might as well be considered one. This contention has a very loose basis because engaging in such public duty is not even a criterion to qualify as a public authority under the Act. The Act has not defined public duty, but it does contain the definition public authority. Hence, a nebulous condition should not be attracted to circumvent a more coherent definition of public authority which is already provided in the Act.
Second reason for the application of the Act to political parties is that they derive statutory recognition from the Election Commission and are vested with constitutional rights under the Tenth Schedule of the Indian Constitution. Political parties are given statutory recognition on their registration with the Election Commission of India under the provisions of Section 29A of the Representation of People Act, 1951. The fact that political parties get statutory recognition from the Election Commission is attached to the aspect that bodies established by the Constitution or any other law made by the Legislature or the Parliament, qualify as a public authorities.
But the Election Commission just gives recognition to these parties it does not categorically establish them. With respect to the constitution, political parties are vested with substantial powers when it comes to the disqualification of members of the legislature on grounds of defection, under the Tenth Schedule of the Constitution. Again this contention can be can be easily refuted because the constitution merely vests in the political parties, the power to exercise their rights, it does not establish the parties.
Apart from these two claims, the next one is that since political parties are substantially funded by the government, they are effectively public authorities. Section 2 (h)(d)(ii) of the Right to Information Act say that a non-Government organization which is substantially financed, directly or indirectly by funds provided by the appropriate Government, is also a public authority. Here the Act does not define the quantum of ‘substantial financing’ hence it is open to interpretation. Political parties are provided free airtime on state owned television, Doordarshan, and radio, Akashwani as per order no. 437/TVs/2009/M&TS of Election Commission before the elections. Under the section 13A of the Income Tax Act, 1961, the political parties are also granted tax exemptions. Political parties are also provided with facilities for residential and official use by the Directorate of Estates, for which they are only charged a nominal amount as rent. Due to these reasons CIC considers political parties to be substantial financed by the government.
But can income tax exemption, free airtime on state broadcaster for elections, and property at below market price rent be considered to be “substantial financing”? It can be witnessed from precedents that the quantum of substantial financing differs from case to case. But the judgment in Indian Olympic Association and others v Veeresh Malik & others, to some extent provides a solution to this problem. In that case it was held that that government funding should be such that it should enable the entity to fulﬁll its public or predominant position. And further the financing should be such that, had it not been for the financing of the government, the entity would have not been able to function effectively. Therefore by applying the judgment in the present situation it can easily be inferred that the political parties will still be able to function effectively even without the financing, because of the most of the funding that they receive is from private entities.
Hence free airtime, tax exemptions and subsidized property rent are not integral for the parties to perform effectively. But nevertheless the quantum of substantial financing is unknown and varies in each case. Therefore whether political parties can be considered to be substantial financed by the government is quite debatable.
The entire idea of bringing political parties within the ambit of the RTI Act is to curb corruption and the flow of black money. It is indeed desirable to lift the veil surrounding the political parties and subject them to public scrutiny.
But extending the application of the Act to political parties may not the most viable solution to bring more transparency and to curb corruption. This is because firstly, political parties do not qualify as public authorities. Secondly, it hampers the functioning of the political parties.
The political parties if brought under the ambit of the Act would be under a compulsion to answer all the queries sent in by the citizens, this would create unnecessary work for which they do not have specially assigned manpower, unlike the government. And it would also expose them to rival parties, who may abuse the Act, ultimately leading to a political warfare. As of now the outcome of this situation is unknown, since the bill regarding Amendment to the RTI Act, is still pending in the legislature. Therefore this is not the best solution to increase transparency of political parties as they are merely of public character and do not qualify as public authorities.
This post has been authored by Abha Nadkarni, student at the West Bengal National University of Juridical Sciences and memeber, NUJS Constitutional Law Society.