Can the political parties be termed as private bodies?
Five days remain for sending comments and views on the Right to Information (Amendment) Bill, 2013 (the Bill) to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. While the powers that be might be inclined to do a rethink on the Ordinance intended to let convicted MPs and hold on to their seats, the effort to amend the RTI Act to keep political parties out of its ambit goes on without much soul-searching. Recent news reports about the Cabinet Note attached to the Bill (accessible on the Dept. of Personnel’s website at: http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02rti/1_13_2013-IR.pdf) have indicated that the Government intends to exclude all political parties from the Right to Information Act, 2005 (RTI Act) and not just those six national parties which were declared as public authorities by the Central Information Commission in June this year. In fact the text of the RTI Amendment Bill itself makes this intention very clear. The Cabinet Note only provides the reasoning for this retrograde move of the Government.
Unfortunately, by claiming that political parties are private bodies, political leaders opposed to transparency have reduced the status and prestige of their parties to the level of ordinary associations and clubs which appear and disappear with time. I have explained below three not so well known arguments which you may use while sending your views as to why political parties must become transparent under the country’s regime of transparency. They go far deeper than the argument of being “substantially financed” by the Government given under Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the RTI Act. A summary of these arguments is given below while the full text is given in the attachment.
1) Multi-party system is part of the basic structure of the Indian Constitution:
Seven years ago a Constitution Bench of the Supreme Court unanimously held that “parliamentary democracy” and “multi-party system” are an inherent part of the basic structure of the Indian Constitution [Kuldip Nayar vs Union of India and Ors. (2006) 7 SCC1 para 195, accessible at: http://judis.nic.in/supremecourt/imgs1.aspx?filename=30905).
This position has been reiterated by a 3-member Bench of the Apex Court in its recent judgement on the issue of the right of the voter to reject all candidates contesting an election to Parliament or State Legislatures now becoming popular as the NOTA case (“None of the Above”) [PUCL Vs Union and Anr. vs Union of India and Anr., WP (C) No. 161 of 2004; judgement accessible at: http://judis.nic.in/supremecourt/imgs1.aspx?filename=40835].
A multi-party system derives its identity and meaning from its constituent components, namely, all ‘political parties’ that routinely put up candidates in every election to be chosen to represent people in Parliament and the State Legislatures. They form the government if they acquire a majority of seats in the Lok Sabha or the Vidhan Sabha or sit on the Opposition benches if they fail. So after Kuldip Nayar, political parties cannot justifiably claim to be private bodies like the hundreds of Rotary or Lions Clubs or other private associations of individuals in India. Political parties, whether in Government or in the Opposition, are undoubtedly bodies that exist and work for in the public interest. As components of the multi-party system they indisputably acquire a public character and are indispensable for the very existence of India’s multi-party based parliamentary form of government. Further because of the fact that the term “original political party” is defined under paragraph 1(c) of the Tenth Schedule of the Constitution, they may also become bodies constituted under the Constitution – a criterion for determining public authorities mentioned under Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; (i) of the RTI Act. There is very little justifiable reason why political parties ought not to be brought under the country’s regime of transparency just like all other organs of the State, namely, the Executive, the Judiciary and most importantly, the Legislature which is mostly filled up with their own members as observed by the Court.
2) Some categories of information about Parliament’s working are held only by political parties:
An important arm of a political party is its legislature party or parliamentary party comprising of their members elected to the Lok Sabha and the Rajya Sabha. The leaders and deputy leaders of other recognised legislature parties or groups are also known as ‘chief whips’. They ensure that MPs belonging to their parties toe the party line on almost every issue. Under The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998, they are entitled to office space, a telephone line and secretarial services, all free of cost (the text of this law is available on the website of the Ministry for Parliamentary Affairs at: http://mpa.nic.in/actwhip.htm). The offices of these leaders and deputy leaders of legislature parties hold the following categories of information in material form which are not accessible to the people anywhere else:
1) Criteria for selecting members of the legislature party/parliamentary group to represent the party/group on the various committees of Parliament;
2) Criteria for selecting members of the legislature party/parliamentary group to speak on any issue or Bill in either House;
3) Contents of the ‘whip’ or instruction issued to the members of the legislature party/ parliamentary group during a discussion on a ‘motion of confidence’ for or a ‘motion of no confidence’ against a government;
4) Contents of the ‘whip’ or instruction issued to the members of the legislature party/ parliamentary group on any matter raised on the floor of the House such as a discussion or voting on any Bill or other motion moved by Government or any member;
5) Contents of the ‘whip’ or instruction issued to the members of the legislature party/ parliamentary group during the election of the President or the Vice President of India; and
6) The minutes of the meetings of the legislature party/ parliamentary group on all matters relating to the business of Parliament;
These categories of information are not held by the Secretariats of the Lok Sabha and the Rajya Sabha which are covered by the RTI Act. Neither these Secretariats nor the Government nor the Election Commission of India can demand the production of these categories of information from these political parties under any law. In other words a whole range of information that relates entirely to the functioning of MPs in Parliament is simply not accessible to the citizen-taxpayer under any law even though he/she pays for the expenses incurred in creating and maintaining such information. This information is available only with the respective political parties. In the absence of a legal obligation to disclose information citizens who elected an MP will simply have no information about the working of the machinery that controls his/her behavior in Parliament. This is one of the reasons why citizens are unable to clearly understand the reasons behind the actions of political parties that stall progressive legislation such as the Women’s Reservation Bill or the Lokpal and Lokayuktas Bill. Further, under paragraph 1(b) of the Tenth Schedule of the Constitution “legislature parties” are defined as a collective of all members of a House of Parliament belonging to a political party. So such legislature parties also may also become bodies constituted under the Constitution – a criterion for determining public authorities mentioned under Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; (i) of the RTI Act.
3) Central Government’s decision on Rajya Sabha Committee’s report on the Lokpal Bill:
The Lokpal and Lokayuktas Bill was introduced in the Rajya Sabha and referred to a Select Committee for detailed discussion in 2012. In November 2012 the Select Committee submitted a report recommending several major changes in the Bill. One of the recommendations was to exclude all bodies and institutions financed by donations received from the public. Readers will remember that a major ground for criticism of the CIC’s order raised by political parties was that the amount of funds they collected by way of public donations was much more than the funding- direct or indirect received from the Government. In January this year the Union Cabinet took a decision on the recommendations made by the Select Committee. At para #2, the Government’s press release disseminated by the Press Information Bureau states (accessible at: http://pib.nic.in/newsite/erelease.aspx?relid=91960):
“Government has decided to exempt only such bodies or authorities established, constituted or appointed by or under any Central or State or Provincial Act providing for administration of public religious or charitable trusts or endowments or societies for religious or charitable purposes registered under the Societies Registration Act. Other non governmental bodies receiving donation from the public would thus remain within the purview of Lokpal.” [emphasis supplied]
This decision pertains to Clause 14(h) of the Lokpal Lokayuktas Bill which brings all non-governmental organizations including all associations of persons under the purview of the Lokayukta proposed to be set up for combating corruption. The office-bearers of all such bodies would be treated as public servants for the purpose of the Prevention of Corruption Act, 1988. Section 2(1)(f) of the Representation of the People Act, 1951 defines a political party as:
“an association or body of individual citizens of India registered with the Election Commission of India as a political party under section 29A.” [emphasis supplied]
By deciding to keep all NGOs and associations of persons other than religious and charitable institutions within the purview of the Lokpal and Lokayuktas Bill, the Government consented in principle to bring political parties and their office bearers within the ambit of that Bill. Political parties will have to provide any and all information sought by the Lokpal for the purpose of inquiry/investigation of allegations of corruption against their officers. Given this public stance of the Government it is important to ask the question:
“if this principle is good enough for the accountability of political parties why is not good enough for their transparency?”
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