Submission to Parliamentary Standing Committee regarding RTI (Amendment) Bill, 2013
The Right to Information (Amendment) Bill, 2013
Submission to the Department‐related Parliamentary Standing Committee on
Personnel, Public Grievances, Law and Justice
Govind N. Shantharam
Department of Political Science
University of Minnesota, Twin Cities
Former Doctoral Scholar
Jawaharlal Nehru University
RTI Advocator and Activist
Hauz Rani, New Delhi
Place: New Delhi
We, the authors of this submission, being citizens of India, and users and supporters of the Right to Information Act, 2005(RTI Act) would like to submit our views on the Right to Information (Amendment) Bill, 2013, (RTI Amendment Bill) to the Department‐related Parliamentary Standing Committee. We apologise for the delay in sending this submission as we had to undertake indepth research into the debates and the jurisprudence pertaining to the subject matter of the RTI Amendment Bill in order to come up with substantive arguments to support our position. We appreciate the progressive gesture of our elected representatives in Parliament to refer this controversial Bill to this Committee to enable widespread discussion on its implications for the regime of transparency established in the country since 2005. We circulated some of the arguments contained in this submission through the mass media for people’s comments and received positive feedback from several quarters. We also hope that some of the commentators have included some of these arguments in their submissions to or depositions made before this Committee.
This submission is divided into two parts.
Section I deals with the philosophical debates around the desirability of bringing a very high degree of transparency in the working of political parties, thereby making them directly accountable to their primary constituency, namely, THE PEOPLE.
Section II deals with the legal issues raised in the Statement of Objects and Reasons attached to the RTI Amendment Bill where we explain why we believe political parties are squarely covered by the RTI Act and why the RTI Amendment Bill is a retrograde measure.
Why Political Parties must be Transparent and Accountable to THE PEOPLE
After the Central Information Commission declared six national political parties public authorities under the RTI Act in June 2013, several leading political parties have publicly opposed the rationale of this decision claiming that they are merely private associations of individual citizens.
The legal implications of this stance and the arguments to counter it will be dealt with in Section II below. In this section we discuss the philosophical issues pertaining to the nature and character of political parties and their direct or deemed relationship with the citizenry.
Political Parties are Public Institutions, not Private Associations
Taken together, the political parties in India and for that matter in any country that recognises the representative form of democratic governance involving political parties, constitute a system that has the form of an ‘institution’ and therefore is incontrovertibly ‘public’ in nature and function.
There is nothing private about a political party except for any personal information that may be available with the party offices whose disclosure without the consent of the concerned persons may constitute a breach of the fundamental right to privacy which is part and parcel of the fundamental right to life and liberty guaranteed under Article 21 of the Indian Constitution. The term ‘public’ is used here in its broadest sense with the citizenry being the reference point rather than as a narrowly constructed phrase implying “departments, offices or agencies of the State”.
The legal sense of both the terms‐‘institution’ and ‘public’‐significantly overlap by their being defined by excluding all features and pursuits of a particular, limited and restricted nature. Both an ‘institution’ and the ‘public’ are recognised by our laws, both directly or in an implied manner, as essentially spaces that are open to the participation and enjoyment of the entire society or body politic. While any political party can and does outline specific criteria and rules of membership such as policy‐programmes, various forms of contribution and payment, or ideology, it cannot fulfill its electoral objectives or its representative function if it does not make all attempts to garner the support of as large a section of public as it can manage. That is, it ceases to be viable as a political party unless it addresses the public at large beyond its limited membership.
We may further add that all the functions of a political party‐organisational, electoral, financial, mobilising‐are carried out for the benefit of those people whom it claims to represent, and consequently not for private gain but as a form of public duty. It is difficult to even isolate any activity, objective or purpose in the functioning or the reasons for the formation of a political party, which can be identified as an example of private interest or gain. The only attribute of political party that can be firmly asserted as having a private dimension is the voluntary character of its associational activities. The decision to form, to join, and to support a political party is in every case a private, individual and singular decision. Every subsequent decision and action takes place, and deliberately endeavors to be, in the public realm. Insisting that the private choice of citizens to form a political party acquires a public dimension is neither a mere academic exercise nor a matter of drawing and collapsing fine theoretical distinctions. We witness precisely such a process of transformation of a private choice into a public act, and it is legally recognized, every time a vote is cast. Every vote cast by a voter is informed by a private decision to prefer one
political party or candidate over the others, and a range of concerns and preferences of the voter can shape this decision, none of which the voter can be compelled to make public (even in face of studies that show that most individuals make electoral choices only after talking, consulting and identifying with other individuals, groups, and communities). However, the vote ceases to be a private decision once it has been cast as a vote. Therefore the individual choice of the voter remains opaque or secret in the public, but the act of voting itself has to be documented in full detail as the public of exercise of democratic participation. In fact, if we follow the events in their proper sequence during the casting of a vote, the registration of the public act of a vote precedes, and thus prepares the way for, the action where the voter indicates her private choice.
Furthermore, the consequences of the sum total of all private actions of voters of casting their vote are anything but public in nature. The one and the same activity is thus legally recognized as simultaneously having a private as well as a public dimension.
Political Parties are in a different and unique class from all other civil society organisations
There is strong rationale behind treating the operations of political parties together as a system. Does the private nature and functioning of a political party come more prominently in view if we approach political parties in single as an association of private individuals? As mentioned at the beginning of this section, political parties have, both inside and outside Parliament argued that being associations of private individuals they are quite like other civil society organisations and carry out similar activities. There are, no doubt, many areas of overlap between the activities carried out by a typical civil society organisation and a political party. Several civil society organisations engage in collecting and shaping public opinion, providing various forms of social service and support to citizens, formulating and critiquing public policies, and mobilising protest and opposition to state power. Furthermore, civil society organisations today take on important governmental functions when they participate in close partnership with various government agencies to research, supervise, and even implement, various government projects and programmes.
The public nature of many of the activities of civil society organisations is not in question; yet, and notwithstanding these functions, civil society organisations do not cease being associations of private persons. This is because the private nature of civil society is instituted and maintained by the State itself. The State deliberately defines and outlines civil society as a space arguably free from its intervention and interests through the very laws it enacts that enable setting up of civil society organisations. The fundamental right of people to form or freely join associations or unions guaranteed under Article 19(1)(c) of the Constitution is an example. From the perspective of the State, the essence and functioning of civil society lies in its role as a realm of freedom from where citizens can make demands and challenge the activities of the State. Viewed from this perspective, civil society, its partnership and cooperation with various government agencies in the latter’s projects and programmes can never develop into the objective of acquiring the powers of the State. In other words, while civil society organisations may take on some of the responsibilities carried out by erstwhile government agencies they cannot and do not aspire to form the Government.
We must also notice that the relationship the State institutes between itself and civil society organisations is the exact inverse of the relationship that it institutes with political parties. Whereas on the one hand the State seeks to deliberately maintain its separation from civil society, on the other hand, it must actively facilitate its openness and access to political parties and encourage their attempts and interest in gaining State power through electoral success. It is impossible to ignore that civil society organisations come in a wide variety of forms and in the pursuit of a wide variety of objectives, whereas political parties resemble one another in many respects in terms of their internal organization and functioning. A thorough reading of the Constitutions, rules and byelaws of the major politiclal parties displayed on website of the Election Commission of India is adequate to demonstrate the verity of this argument. For instance, many civil society organisations are organized around a single objective such as a specific law or policy or social issue. There certainly have been political parties that have formed around a single demand or program but they cannot remain viable as electoral entities as long as their support base is restricted to that one demand or programme.
It is in fact readily obvious that political parties consider themselves to be quite different from all other forms of associations of private individuals in practice. While they will allow party members to also be members of any number of civil society organisations they do not permit any of their members to also have membership with another political party. This is not simply because they are concerned about the problem of divided loyalties. It is well known how the membership to different social and cultural associations of party members seriously divides these political parties over conflicts in crucial areas such as ideological positions, policy preferences, and electoral candidate selection. Nothing inhibits a private person’s right to freely associate with other private persons and if political parties are just like any other civil society organizations, everyone ought to be, in principle, able to have simultaneous membership in multiple political parties. And yet, we are not aware of any political party even considering this seriously as a possibility, let alone taking this up as a demand for reform in electoral laws.
Multi‐party membership is neither a logical impossibility nor a historically rarity; political parties sometimes promote candidates contesting on multi‐party tickets within two‐party political systems as a strategy of introducing third‐parties and registering protest votes. Theoretically it is conceivable that, even in India, a newly formed, weak or small party may supply a popular candidate to another major party to contest elections on the latter’s party ticket as a way to gain toehold and influence in institutions of governance or at least in the electoral arena. Yet we do not see either well‐established or newer or small parties adopt such an electoral strategy, which confirms our belief that political parties do make and maintain a distinction between their associational activities and those of social and cultural organisations precisely in terms of their respective natures and functions. If multi‐party membership experiments have not become customary in India, the reasons have to do with how political parties perceive themselves and the function of electoral contest ‐ as unique and different from the agenda or programme of social and cultural organisations. A fundamental distinction between political parties and civil society organisations has been developed by civil society organisations themselves because they often form around issues that have little or no support either because there is no general awareness of it as an issue or public opinion is largely prejudiced against it or the changes to the status quo being demanded. This signals both the virtue and effectiveness of civil society organisations since it is precisely by not being representative or by going against the current public opinion and social interests that they successfully operate according to the best democratic tradition.
Democracy is possible without civil society organisations but not without political parties
An empowered civil society protected from State interference and interest is crucial to a vibrant democracy, and yet it is nevertheless possible for a democracy to function without any civil society organisations. However, we cannot continue to remain a representative democracy if there are no political parties. In other words, political parties are both an essential feature of representative government, and in and through their functioning generate and give form to the very attributes that make a State a democracy. The legal recognition of this argument is made in Section II of this submission where we discuss the Supreme Court’s pronouncements about the multi‐party system being an inherent part of the basic structure of the Indian Constitution.
It is clear that in a democracy political parties are quite different from all civil society organisations in what they are and what they do. It must be reiterated that political parties are not just like other associations of private individuals because they take on the responsibilities of representation. Yet again, political parties who view themselves as only private associations may argue that civil society organisations too perform representative functions by speaking for and pursuing the interests of various sections or individual members of society. The difference between representation by a political party and by a civil society organisation is not merely a matter of numbers of people or interests represented, because one can easily find an association whose work is devoted to bringing justice to one single individual as well those whose focus spans not only national but also international and global issues and groups of people. Instead, the representation undertaken by political parties is of a fundamentally different nature since it cannot be understood or evaluated as anything other than a public practice. There is absolutely nothing private, personal, individual or restricted about the representative activities of a political party, and there is little that a political party is, has, or does that does not pertain to this principal function of ‘representation’.
The meaning of the representative nature and aspirations of political parties
When political parties argue that they are not ‘public authorities’ under the RTI Act because they are voluntary associations of individual citizens they seem to rely on an understanding of representation that directly contradicts all the activities they must and do engage in as political parties. ‘Representation’ takes many different forms in many different contexts ranging from the activities of an agent, a deputy, an attorney, a trustee, an ambassador, a sportsperson, to the works of an artist or writer or filmmaker. This wide array of representative activities is neither a sign that representation is a nebulous concept nor is it indicative of some underlying common characteristic that allows us to use all the various senses of representation interchangeably. We must certainly not allow our crucially important efforts to increase transparency and accountability in governance to be derailed by any attempt by any segment of our polity to exploit the appearance of ambiguity that results from the ubiquity of the practices of representation in our society. When political parties insist that they only work as associations of private individuals when they represent the demands and interests of voters and participate in electoral contests, they are in fact pressing forward the view that they act as deputies or agents who are authorised to act on behalf of the electorate and citizens. Such a view not only limits representation to a practice where one actor simply substitutes another actor in the structures and institutions governance, it further restricts representation to the activities that take place in and around elections and to those who emerge successful from such electoral contest.
To confirm that political parties indeed prefer this view of representation one needs only listen to the comments of various media spokespersons of political parties who invariably insist during TV debates that electoral success or defeat are the only evaluation and criticism that really count, and thus the only ones they ought to heed. This also appears to be the reason why political parties prefer that only the Election Commission determine the limits and scope of their transparency and accountability beyond what they are already subject to as private individuals and associations according to our laws. When political parties try to convince citizens that the activity of representation is limited to the electoral process and the exchange where they campaign and citizens vote, not only do they hide from view an array of activities that they have to undertake in order to appear before the voters as viable candidates, they also regrettably reduce democratic participation to a periodic ritual of consent beyond which citizens have no role or reason to engage with political parties. More than a flawed or biased understanding of representation, this is a deeply cynical view of both democratic politics and citizenship which is based on the fundamental notion of equality that rejects all forms of inequalities that have been inherited historically.
The necessity of moving from the identity to the actions of political parties
To obtain a more precise and realistic understanding of representation by political parties it is thus necessary to shift the discussion from the question of who they are to the question of what is it that they do when they claim to represent us, THE PEOPLE. We can determine whether political parties are public or private actors only once we have an accurate grasp of what political parties do substantively when they represent us. Hannah F. Pitkin, a renowned political theorist, in her book The Concept of Representation (University of California Press, 1967), has provided a detailed investigation of the different practices and meanings that collect around the term representation that allows a reader to clearly distinguish what political parties do, namely, ‘political representation’. Pitkin’s investigation equips us with an understanding of political representation as fundamentally different from all conceptions and practices of representation that describe it as either a static activity of simply mirroring interests of the represented, or a specialized activity that substitutes the actions of experts to the actions of citizens. Neither the Indian Constitution nor the attendant electoral laws sanction either of these two views of representation. The idea of representation as attempts to accurately reflect the divisions in the electorate, operative in proportional representation systems [unlike the first past the post (FPP) system that we have adopted], reduces the actions of political parties to simply conveying the interests of the electorate and the actions of citizens to selecting individuals to parties and political office who closely match these divisions and communicating to them their preferences. When seen as a form of specialised activity carried out by experts in lieu of and on the behalf of citizens by substituting them in the places of governance, representation becomes an imperious action and less a matter of self‐government. Representation as mirroring makes politics inert on the side of the representative, and representation as substitution makes politics a form of domination on the side of the represented. The ideas of representation as accurate reflection, and representation as authorized substitution, are incorrect and offensive for representative democracy because both ideas draw on conceptions of representation that are limited to the private domain.
An attorney/lawyer is indeed effective because her actions substitute those of her client who does not share her specialised knowledge of law; similarly, each neighborhood in the city must have a separate residents’ welfare association that manages life in the neighborhood and resolves its local problems as an intrinsic part of municipal governance. Private contexts, which are also dependent on relations and practices of representation, do not provide us with any basis or features that we can use to define or analyse political representation. Not only is the analogy drawn between political representation and representation in the private domain false, it does not offer any understanding of what is involved in political representation as a substantive activity.
Today when political parties make the claim that there is no difference between their functions and that of a civil society organisation or a non‐governmental organization (NGO) they seem to ignore, and inexplicably so, that political representation is in fact a creative activity involving formulating policies and programmes, mobilizing people around these policies and current issues, forging general agreement and consensus among competing constituencies, negotiating compromises, reconciliations, and managing the conflicts between diverse claims, values and aspirations. All political parties routinely engage in all such activities, not just in and around elections or only when they are elected into office, but all the time. Democratic politics and governance requires enormous amounts of mediation, mobilising and conflict management from all political parties since there are no values, objectives and priorities, or political interests that are self‐evident, clearly outlined and readily available to be picked up and simply passed on for a stamp of approval by the government. Political representation presupposes a distance between representatives and the represented, which is the condition of possibility for any work of mediation, mobilizing and conflict management; it is only in the absence of such a presupposition that the claim of representation simply as a transparent and direct mirroring of, and correspondence to, the represented, becomes valid. In other words, wherever there is political representation, political parties, even through they are comprised of private individuals, have differentiated themselves from the electorate and citizens by their very decision to offer themselves as representatives. It is this difference and distance between the representative and the represented that creates the space in which all the activities carried out by political parties become possible. It is not political representation unless political parties act for the electorate and citizens; however, it is not political representation either, if political parties simply substitute themselves in the place of, and thus replace, the electorate and citizens.
Pitkin helps us recognise the following about our present state of affairs: political representation in India involves acting for the electorate and citizens, without replacing or excluding them from the place where they are represented. When political parties engage in political representation they make the electorate and citizens present in and through their activities. This is why political parties are public actors and political representation is a primarily public, institutionalized arrangement and not simply an assemblage of associations of private individuals (Pitkin, Ch, 6, pp. 221‐225 and passim). Our political processes remain democratic not when we preserve the private status of our political parties, but when our system of political representation succeeds in making people present in the functioning of political parties.
Political parties seek to represent more people than their members
Again political parties cannot be treated as associations of private actors because their representative function, unlike those of NGOs, or social and cultural organizations, is not restricted to their members or their specific constituencies. Political representation is a structure in which parties have taken on the task of the general representation of people and not particular sections of the electorate and citizens. This is why it makes no sense to consider political parties as mere associations of private individuals when we are concerned with political representation; the moment such associations establish the objective of contesting elections they become public actors who participate in an institutional arrangement that structures the relation between these associations and people as general and open to all ‐ i.e., a relation that is ineluctably public in nature and practice.
Therefore, recognising political parties as public actors is no mere ideological preference or theoretical maxim; it is the condition of possibility of democratic governance.
State support for political parties
Many countries provide for public funding of political parties at the cost of the taxpayer. Therefore in countries like Poland, political parties are obligated to give information to people about their activities directly when a request is placed before them under their RTI laws. In India political parties do not receive grants from the public exchequer, however other kinds of support such as exemption from the payment of taxes amount to no small cost to the public exchequer. These kinds of support are described in detail in the June 2013 order of the Central Information Commission which the RTI Amendment Bill seeks to nullify. So we will not repeat a description of the kinds of support that political parties receive which in the opinion of the Central Information Commission amounts to ‘substantial financing’ of political parties – one of the essential criteria to bring any body or organisation directly under the transparency regime established by the RTI Act.
Instead we will explore the rationale behind society’s provision of some kind of State support or the other to political parties.
Why are political parties provided with State support in the form of direct subvention (grants), subsidies, tax exemptions, free copies of electoral rolls, and free access to the public and private media at the time of elections? The State funds not only political parties but several private associations, civil society organisations, research institutions and even individuals who are engaged in political activities. However, all individuals and associations are not allocated State support following some common purpose or a single set of criteria and objectives. When the State provides direct financial and indirect non‐monetary support to political parties we can identify at least two purposes that are perceived to be vital at the public level. First, since in a parliamentary democracy electoral contest is the only feasible method of selecting our representatives, and State support, in whatever form, not only for the process of conducting elections but also for political parties, recognises that both are central, institutional features our democratic political system. We must understand such direct and indirect state funding of the operation of political parties and their election campaigns in terms of the State supporting the ‘costs of democracy’.
Also, by providing public funding in different ways the State recognises political parties as associations that need to be maintained at a certain distance from, and independent of, private interests, while simultaneously assuring their equal access to the public. In other words, by supporting them the State already recognises in effect that political parties and their functions are of a fundamentally different nature than all other voluntary associations. Second, by granting State support to all political parties that meet a certain basic criteria, the State seeks to establish an equitable relation between political parties regardless of their size, organizational structure, ideology or policy‐programs. That is, the State maintains the field on which political parties exist, as a field that is public, fair, equal and open to all citizens. Political parties receive State support in order to maintain the public dimension of our political participation, and thus the public quality of our democracy itself. If we allow our political parties to define themselves as only voluntary associations of private persons, we allow them to define our democracy as nothing more an institutional arrangement that facilitates the purchase of political power by the strongest private interests.
Is there any political party today that would not be interested in the securing its autonomy in decision‐making, policy formulation and activities for mobilising support, from control by moneyed and sectarian interests? Even when a political party is formed to promote the objectives of rich and powerful interests of a society they cannot function effectively unless they have some flexibility in determining the policies, ideology and electoral candidates with which they can best pursue such objectives. In other words, when political parties actively try to preserve functional autonomy from the private interests who would seek to regulate their activities by controlling their funding or influencing candidate selection, they also, for all intents and purposes, are taking the position that they would not want to limit their accountability to such interests. Or else all political parties in India would become extensions of the corporates who make large sized donations to them. This is again crucial evidence that political parties do not see themselves as mainly or exclusively private actors who are accountable only to other associated members.
Accountability, and its cognate attribute, transparency, when it concerns political parties are only meaningful when we treat them as a relation to the public. The historical juncture of the current debate about the nature of political parties
The claim that political parties are similar in nature and function to other voluntary associations of private individuals is surprising because it is quite new in the Indian political context. There is no indication that political parties have ever taken this position or ever made a sustained claim for a private status until the middle of this year. The change that political parties are trying to secure themselves against is the one instituted by the RTI Act, which shifted accountability and transparency from being restricted to a relation to the State to a relation to the public. If it were merely restricted to the State there would have been no need to expand it to cover substantially financed non‐governmental organisations. It must be remembered that this category of bodies was included in the RTI Bill at the express recommendation of the representatives of these very political parties sitting in Parliament. This point is discussed in detail in Section II below.
The imaginary threat to the electoral prospects of political parties
The RTI Act needs to be understood as a law that improves democracy by enhancing the public nature of the machinery and institutions of governance and as such operates as a process of reform of public life. Political parties have themselves found the RTI Act very useful to extract details about government programmes and spending so as to expose corruption and mismanagement when they are out of power. This is of course what the RTI Act is intended to do and exactly what political parties are meant to do as part of their chosen function. The opposition mounted by political parties to transparency and accountability under the RTI Act seems to revolve mainly around concerns that this will handicap them in electoral contest. Even though the claim to their private status touches on the principles of representative democracy, political parties have not mounted any defense of their claim at such a level. Instead, their focus in this debate has remained on practical difficulties and strategic disadvantages they would have to suffer if they were to be brought under the RTI Act. It is here that political parties are thinking only like private actors even while in their everyday functioning they obviously think and behave otherwise. The costs of transparency and accountability, like public funding in whatever form, are ‘costs of democracy’ where public good outweighs private inconvenience. Transparency and accountability are just as vital to the quality of our democracy as State support for political parties.
This does not require that we view transparency and accountability to the public as some sort of quid pro quo to State support of political parties since they are both intrinsic parts of the same process that guarantees the democratic and public character of our processes of political representation.
Political parties unlike political systems have greater flexibility in matters of reorganisation and it is very apparent that they are overstating the practical difficulties that they would have to face in making the necessary changes to adapt to the systems and procedures of transparency required of them under the RTI Act. Political parties seem to have mistaken the RTI Act as an attempt to interfere in how parties organise themselves and their decision‐making. This is certainly not the purpose of this law since a number of different party organisational structures are compatible with the requirements of transparency and accountability, none of which demand the sacrifice of party cohesion or unified action. There is ample evidence and several decades of operational experience from representative democracies around the world that transparent routes for party funding, and procedures of candidate selection are far more efficient methods of operation because they prevent entrenched sectarian interests, factional conflicts, and mismanagement from distorting the priorities and functioning of organizations. The difficulties posed by entrenched interests and struggles between factions are not contained, only exacerbated by the culture of secrecy. If secrecy from the public is necessary to the smooth functioning of the party organisation, in what sense are factional conflicts, power struggles and ideological rifts within a party, a sign of its ‘smooth functioning’?
Today political parties in India find themselves in the unfortunate position of having to defend the problems and inefficiencies that have accumulated over time as how political parties normally do and ought to function. Under the RTI Act, which mechanisms a political party adapts to generate finances, nominate candidates and outline policy‐programmes, will continue to remain in that party’s purview; this law only requires that these mechanisms be organised in such a manner that they are available to public scrutiny as they directly concern and impact the public. For instance, political parties argue that electoral nomination or candidate selection is and should be a process that is internal to the party and its specific organisational structures and decision‐making mechanisms. They do not necessarily deny that candidate selection often occurs in the middle of widespread and often fierce conflicts among factions inside the party and powerful sectarian interests that support the party; political parties only argue that they are not publicly accountable to how they manage and resolve factional conflicts and power struggles over nomination. Such a position is not sustainable once we recognise that candidate selection not only reflects the relative strengths of political forces within and without the party and the alliances and compromises between them, but also affects politics in the public by shaping the political party and the composition of the government in specific ways.
It is of course obvious that the candidates selected to contest in a specific election will determine the composition of the government and the policies and strategies it will adopt during governance. The outcome of the electoral nomination just as much as the outcome of electoral contest determines how government is formed and how well it will work. Thus, the candidates a party nominates for a specific ballot presents that demographic, geographic and ideological face of that political party to the public. However, another equally important, and yet often ignored, consequence of candidate selection is that it is often the electorally successful candidates who are later appointed to the executive structures of their party or become their leaders. The ability of a political party to remain a cohesive and consistent actor in politics, and thus a viable and reliable entity that the electorate and citizens can support, depends upon efficient and successful candidate selection. To that extent the process of candidate selection and not just its final results have public effects, and is thus very much a matter of public interest.
Political parties mistake this public interest in candidate selection as an attempt to dictate or standardise the decision‐making mechanisms and the organisational structures of the party. Nothing could be further from the truth since a variety of nomination mechanisms such as core committees, general body meetings, delegate conventions, caucuses, party‐wide elections are all equally compatible with the requirements of transparency and accountability under the RTI Act.
These days it is impossible to find any political party in India that does not support electoral reform. By complying with the requirements of the RTI Act and accepting their inclusion within its definition of the term ‘public authority’, our political parties can demonstrate to the people that their demands for electoral reform are more than just platitudes aimed at the ruling parties or ruling coalitions. The RTI Act must be viewed an opportunity to make pragmatic assessments of the organisational changes and systemic solutions that can be made immediately, and identify the challenges that require amendments in the existing laws and new rules of electoral procedure in the future. In other words, our political parties need to view the RTI Act as a law that significantly reduces the transactions costs of, and lays meaningful foundations for, critically necessary electoral reforms.
The vote and public donations are both forms of expression and very public in nature
By their own admission, most of the financing of political parties in India occurs through private donations, and public funding in quantitative and monetary terms is minor in comparison. At first glance this appears to give political parties an easy way out of the ‘substantially financed’ criterion for the definition of a ‘public authority’ under the RTI Act. In addition, it has been argued that the predominance of private sources of funding of political parties re‐emphasises the constitutional protection of the private nature of associational activity. When individuals make donations to political parties they exercise their right to free association and therefore such activity is guaranteed a certain amount of privacy and opacity to public scrutiny. When viewed as a matter of the exercise of the right to free association there is absolutely no difference between an individual’s donation to a political party and a voluntary contribution to a cultural or charitable organisation. However, this apparent equivalence and continuity between these two decisions to donate money to associations breaks down when we compare them to the individual decision to vote. The decision to donate money and thus support to a specific political party is an act that is proximate to the decision to cast a vote in favour of a specific electoral candidate. Not only are both examples of the individual’s right to free association, they are in fact both different forms of expressing an electoral choice. Of course, it is impossible to collapse the distinction between the two since the vote only counts as legitimate when it is cast in favor only one candidate on the ballot whereas it is fully possible to donate money to more than one political party or candidate contesting on the same ballot. Voting in an election and supporting a political party by donating money are certainly not identical acts, but the two have a more accurate analogical relation than two actions that involve no more that giving money to different voluntary organisations. The analogy between the vote and the donation to a political party is more appropriate because the structure of political representation within which both parties and people engage with each other installs a very specific public relation between them.
The defense of the privacy of donor activity by political parties of course begs the question as to what extent individual financial, economic or commercial transactions really are private and anonymous in our present economic context. These days it is impossible to make a purchase in the market or online without private details such as of one’s name, address, bank, email address, mobile phone number, purchasing habits and preferences, being shared across a variety of other businesses and consumer information collection and marketing agencies, all without the individual’s knowledge or consent. In fact, it is not even necessary to make any consumer transaction other than purchasing and operating a mobile phone to be immediately captured within private data sharing networks. This is not simply an issue of either gaps in the regulatory system that allows private agencies to acquire and exploit private information, or a consequence that we suffer because we implicitly give our consent to sharing our private details when we voluntarily choose to participate in financial, economic and commercial activities. This extensive, and nowadays increasingly global, system of collecting data on private financial and consumer activities has become an inseparable feature and necessary framework of most financial, economic, and commercial transactions. The insistence by political parties that we accept as absolute principle the necessary opacity of individual party donations below the arbitrary limit of Rs. 20,000 stipulated in the electoral law in such a context appears to be an unreflecting and precipitous decision on the private‐public distinction at best, or a form of expedient sophistry, at worst.
There are other more persuasive reasons why political parties may prefer to protect the details of private contributions to their parties such as the very real possibility of violent persecution, harassment or intimidation of donors from rival political parties and powerful sectarian interests that back them. There are of course laws that protect individuals against such violence, harassment and intimidation, but this is a poor way to respond to the very real possibility that greater transparency of donor activity may result in newer problems instead of creating efficiencies and solutions to the present ones. However, the problem seems intractable only because of the way is has been put forth by political parties.
Transparency under the RTI Act certainly does not require that private donors reveal themselves to the public; it instead requires that political parties make their fund raising and collecting activities, and expenditure, available to public scrutiny. In other words, it is not donor activity that needs to be documented but how donations are collected, organised and spent that needs to be systematically recorded and voluntarily disclosed. The Constitutions of all major political parties require them to maintain meticulous accounts of all moneys received and incomes generated in the course of their day‐to day activities. Political parties have also agreed in their own Constitutions to have these accounts of income and expenditure audited regularly. The procedures for accounting even the smallest amounts of monies collected as fees or donations or levies already exist in their very party constitutions.
The funding of political parties does not always occur through electronic networks like banks or financial institutions; i.e. party fund raising and collection are both situated and localizable operations. The sources of funding that political parties claim as being unavailable, and legally unobligated, for record‐keeping are donations of amounts less than Rs. 20,000, which nevertheless accounts for a major portion of the funds they regularly receive. Such donations, which currently carry the air of arriving anonymously out of nowhere and everywhere, have to be collected in specific locations and by particular individuals who are members of respective political parties and most importantly to be accounted for the purpose of auditing. Regardless of whether the process of donation and collection is informal or formal it is undeniable that someone collects the money for the party at a physical location. It is at this point that the donation needs to be, and can be easily, recorded without violating the privacy of the individual donor, since the issue is not how someone gives money but how parties receive, and maintain accountability to, funds from private donors. From this point on it is fairly easy to organise records of party funding by collating data on collecting donations from neighborhood, village, taluk, municipal, regional and national levels. The area‐wise recording of fund raising and collection is not only relatively easy to organise, it is extremely likely that all political parties already generate such information regularly since it is crucial for the assessment of party performance and popularity, and to plan for and predict electoral performance, in each of these areas. In fact the very Constitutions of major Indian political parties that we have studied provide for the maintenance of accounts and also the apportionment of the fees and funds collected from the district level to the national level of the party hierarchy. Without such information on funding trends political parties place themselves in the absurd position of having to wait until the conclusion of each vote counting process to make reasonable assessments of voter support although we recognise the possibility that a donor may not ultimately vote for the same party to which he or she makes a contribution.
Transparency and the role of ‘big money’
The main objective of the regulation of political party financing is to prevent spread of corrupt practices where moneyed interests purchase access, influence, and favors in exchange for party donations, and this problem is only exacerbated, not diminished, in the case of large numbers of, effectively anonymous, small donations. It is impossible to ascertain that such donations are indeed individual, legitimate donations and not donations by rich donors staggered into small amounts or divided among proxies to hide their provenance. Furthermore, if no records are being maintained it is in fact also impossible to verify that these donations are indeed voluntary or even individual. Unless they are recorded in a systematic manner that will make political parties accountable to the veracity of such records, we are being asked to rely on the word and good intentions of political parties that they are legitimate. Political parties, whose main job is to outline rules and legislation, ought to know that the promise of good behavior and assurance of honest intentions never obviates the need for laws and regulation.
Then again, why should political parties be made accountable for private financing? After all a rich individual or corporate retains the power to punish the political party that does not fulfill its promises by funding the opposing political party. In a system where political parties are predominantly financed through private donations there must be laws of transparency and accountability that ensure that all citizens have an equal ability to influence electoral choice and government formation. The problem of corruption in an electoral system where small donations are predominant does not disappear by making only large, corporate and organizational donations transparent. An informed electoral choice by the individual voter depends on a transparent electoral system where the information of how a party is funded reveals to the voter the interests that back the party and which the party is most likely going to favor in its policies once elected. It also serves as a reliable indicator of the relative economic strengths, amount of involvement, and capacity of the areas and the communities from these areas to influence party policies and election outcomes. In other words, transparency of political party financing is a vitally important means of evaluating how well they represent the public interest, mediate the specific interests of their supporting constituencies, and how successfully they foster citizen participation in electoral processes and democratic governance. From the side of political parties, the demands for autonomy from State interference and independent self‐regulation will be persuasive and appear legitimate only if they accede to rigorous standards of public transparency and accountability.
Therefore we believe it is eminently desirable to ensure that political parties remain within the ambit of the general regime of transparency established by the RTI Act.
Legal arguments for retaining political parties under the RTI Act
In its June 2013 order the Central Information Commission has found the six national political parties involved in that case to be substantially financed by the Central Government. The basis for this declaration is the facts and figures indicating the kinds of State support produced by the appellants which were themselves obtained from various public authorities under the RTI Act. As the rationale for treating these political parties as non‐governmental organisations substantially financed by the Central Government is discussed in considerable detail in that order, we do not find it necessary to go into that issue, except to point out that if that rationale is accepted, similar kinds of support these national parties and other recognised State Parties receive from the Governments of the States, wherever they have an established presence, would amount to further indirect funding of a substantial nature from public sources. Free air time, free copies of electoral rolls in every constituency, public land or public building leased out at nominal rentals to any political party recognised in a State will also amount to substantial financing of recipient political parties. By this rationale all recognised State Political Parties would also qualify to be included in the category of ‘public authorities’ under the RTI Act.
In order to counter the rationale on which the Central Information Commission’s order is based, the national political parties and some of the recognised State parties have argued that the preamble of the RTI Act indicates that the regime of transparency is intended to cover only the Government and its instrumentalities and nobody else. They have also stated that they are neither vested with nor do they exercise any authority in the manner of government departments. We will deal with the issue of whether or not political parties act with any degree of authority or not, a little later in this Section. However we would like to point out that the very fact that nongovernmental organisations substantially financed by governments are included in the criteria for ‘public authorities’ is demonstrative of Parliament’s intent to bring all bodies and organisations that do not strictly fall within the definition of the term “State” in Article 12 of the Constitution under the regime of transparency because they receive direct or indirect support from the public exchequer.1 For example, every government‐aided school or college may not strictly fall within the definition of the term “State” under Article 12 of the Constitution but it becomes a public authority for the purpose of the RTI Act. Such aided schools and colleges may not even be instrumentalities of the government as they may have been established by private trusts or societies but for the purpose of performing a function that is of benefit to large segments of the public. Parliament in its wisdom sought to make all such non‐government organisations directly responsible for dealing with information requests from the people. Further unlike security and intelligence organisations that are exempt from the ordinary obligations of transparency like other public authorities, except for information pertaining to allegations of corruption or human rights violation, nothing in the RTI Act is indicative of Parliament’s intention to keep political parties entirely out of its ambit. Further, even though political parties are not the instrumentalities of government it has been demonstrated above that they are the instrumentalities for forming governments at the Centre and in the States. The argument that political parties being institutions so basic and central to the functioning of our electoral democracy must be kept out of the ambit of the transparency regime is therefore untenable. Political parties are both bodies and institutions of self government constituted under the Constitution
Although our Constitution did not make any reference to political parties until 1985, representative democracy based on free and fair elections has been recognised on several occasions as being part of the basic structure of our Constitution in a catena of judgements of the Supreme Court since the mid‐1970s. In 1985, when the Constitution was amended to insert the Tenth Schedule to lay down the procedures for disqualifying a member of Parliament or members of State Legislatures for either defecting from one’s own political party (subject to certain conditions) or for defying a parent party’s directions without prior or post facto approval, political parties found mention in the basic law of our land. Apart from the Tenth Schedule references to political parties were inserted in other chapters of the Constitution dealing with the composition and working of Parliament and State Legislatures. Unlike the definition of the term ‘political party’ contained in Section 2(1)(f) of the Representation of the People Act, 1951 which is: “an association or body of individual citizens of India registered with the Election Commission as a political party under Section 29A”, the term “original political party” is defined as the political party to which a member of a House (of Parliament or a State Legislature) belongs for the purposes of sub paragraph (1) of paragraph (2) of the Tenth Schedule. Paragraph (2) lays down the grounds for disqualifying an elected representative from the House of Parliament or a State Legislature. The link between Parliament and the State Legislatures and recognised political parties that have at least one of their members in one of the Houses of these bodies is unmistakable.
These crystal clear references to political parties contained in various parts of the Constitution are sufficient to make them ‘bodies established under the Constitution’ for the purpose of Section 2(h)(a) of the RTI Act. The Statement of Objects and Reasons attached to the RTI Amendment Bill states that political parties are not bodies established under the Constitution without any justification whatsoever. Being a Bill introduced in Parliament by the Central Government it has not provided any reason as to why it believes it to be so. The term ‘constituted’ is not synonymous with the word ‘created’ and carries multivalent meaning depending upon the context. It is not our claim that political parties are created by the Constitution. Instead they are bodies constituted under the Constitution. There is a subtle but significant difference between the expressions ‘created’ and ‘constituted’ and the two expressions do not always carry the same meaning. In the matter of R C Mitter and Sons vs Commissioner of Income‐Tax Calcutta and D C Auddy and Bros vs
Commissioner of Income‐Tax Calcutta2 the Supreme Court held that the expression: “constituted by” has a distinct meaning from the expression: “constituted under”. The Supreme Court also said that the word “constituted” does not necessarily mean ‘created’ or ‘set up’ though it may mean that also. The Court said, “In the Oxford English Dictionary, Vol. II, at page 875 and 876, the word "constitute" is said to mean, inter alia, "to set up, establish, found (an institution, etc.)" and also "to give legal or official form or shape to (an assembly, etc.). Thus, the word in this wider significance would include both the idea of creating or establishing and the idea of giving a legal form to, a partnership." In that case the Apex Court was dealing with a dispute regarding the requirement of the registration of a partnership whether constituted by or under an instrument of partnership for the purpose of Section 26A of the Income Tax Act. This reasoning may be applied to political parties without much difficulty to describe them as bodies that need not necessarily be created by the Constitution but the fact that they are clothed with a clearly visible legal status in various parts of the Constitution makes them bodies constituted under the Constitution.
In fact for reasons explained in Section I and on the basis of the detailed arrangements for the management of the internal affairs of political parties contained in their own Constitutions, they may also be described as institutions of self‐government that are constituted under the Constitution of India. This also connects with the criterion for determining whether a body is a public authority under the RTI Act or not.
Multi‐party system is an inherent part of the basic structure of the Constitution
The centrality of political parties to the architecture of our democracy is well recognised in a couple of landmark decisions of the Supreme Court if India. In fact the multi‐party system of electoral democracy that has evolved in India has been declared to be an inherent part of the basic structure of our Constitution.
Since 1973 the Supreme Court of India has evolved the doctrine of “basic structure” comprising of “basic features” of the Constitution, to limit the power of Parliament to amend this fundamental law of the land beyond recognition. After describing this doctrine in H.H. Kesavananda Bharati Sripadagalavaru vs State of Kerala [1973 (4) SCC 225ff] the Supreme Court has identified and reiterated several basic features of the Constitution in later judgements. The most important and oft repeated of these basic features is “parliamentary democracy based on rule of law and free and fair elections”.3
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.4 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”).5
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 and thousands of 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 govenment.
Certain categories of information about the working of Parliament will be available only with political parties
An important arm of a political party is its legislature party or parliamentary party comprising of its members elected to the Houses of Parliament or the State Legislatures. The Minister for Parliamentary Affairs is the Chief whip for the ruling party/alliance in the Lok Sabha while the Minister of State for Parliamentary Affairs is their Chief Whip in 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 to them but at a cost to the tax‐paying citizen.6 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 direction 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 direction 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;
A similar system exists in many of the State Legislatures as well. These categories of information are not held by the Secretariats of the Houses of Parliament or those of the State Legislatures which are clearly public authorities under by the RTI Act. Neither these Secretariats nor the respective Governments 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 and the members of State Legislatures 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 or the State Legislatures. 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)(i) of the RTI Act.
Political parties may also be ‘authorities’ constituted under the Constitution
In view of the above arguments it is clear that political parties may issue directions to MPs and State Legislators who are members of their parties to speak or act in a certain manner on any important issue that is under the consideration of the House. Refusal to vote in accordance with the directions issued by one’s parent political party without prior or post facto approval is sufficient cause for the launch of disqualification proceedings under the Tenth Schedule of the Constitution. Although the Chairperson of the concerned House is the final authority to make a decision about the disqualification of a MP or State Legislator, the fact that this process can be initiated by the political party concerned is itself indicative of the measure of authority that it exercises over its members elected to legislatures at the Central or State level. When read with the arguments made earlier in this Section, we believe this attribute also eminently qualifies political parties with representation in Parliament or the State Legislatures to be treated as ‘authorities’ constituted under the Constitution and therefore clothe them with the legal status of ‘public authorities under the RTI Act.
Accountability is not possible without transparency
While called upon to determine the validity of any enactment vis‐à‐vis the provisions of the constitution or its relationship with any other existing legislation, Courts always presume that the concerned legislature was aware of the hitherto existing corpus of laws and would not have consciously adopted new legislation that would contradict other laws in force. Given this presumption, legislatures have a duty to ensure that the laws they enact do not contradict the provisions of any other law unless they choose to insert an express provision to this effect. It is apparent that the hurried manner in which the RTI Amendment Bill has been drafted to deal with the ‘exigency’ posed by the June 2013 order of the Central Information Commission, the Government neglected to cross check the intention of this Bill with the purpose of the Lokpal and Lokayuktas Bill (the LL Bill) passed by the Lok Sabha in December 2011. Clause 14(1)(g) of the LL Bill as passed by the Lok Sabha covers all ‘associations of persons’ that are financed or aided by the Central Government. Similarly Clause (14)(1)(h) of this Bill covers all associations of persons receiving public donations. The implication of these provisions is that all such associations of persons would fall under the jurisdiction of the Lokpal or the Lokayukta for the purpose of inquiring/investigating allegations of corruption made against their office bearers. Further, all officers of such associations of persons, by whatever name called, will become ‘public servants’ for the purpose of the Prevention of Corruption Act, 1983. No exception has been created for political parties in this Bill.
It must be noted that the bar for bringing associations of persons under the jurisdiction of the proposed Lokpal is much lower than the bar for bringing non‐governmental organisations under the RTI Act. While only NGOs ‘substantially financed’ by any government directly or indirectly will are covered by the RTI Act, the LL Bill covers all such bodies irrespective of the volume of financing or aid received from government. While the RTI Act does not cover NGOs that finance their activities solely from public donations, the LL Bill brings even such bodies within the jurisdiction of the Lokpal/Lokayukta clearly indicating the intention of the Lok Sabha to make such bodies also accountable to the rule of law. Further, when the Select Committee of the Rajya Sabha recommended that NGOs financed by public donations be kept out of the LL Bill the Central Government accepted this recommendation only in a partial manner. A press statement released in February this year highlights the Central Government’s intention of limiting this recommendation only to religious and charitable organisations. The relevant para is reproduced below:
“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.”7 [emphasis supplied]
If neither political parties nor the Government have any hesitation in keeping associations of individuals like political parties directly under an anti‐corruption law for the purpose of accountability, their very public reluctance to keep the same bodies directly covered under the RTI Act is difficult to make sense of. The transparency principle underpinning the RTI Act is a cognate of the accountability principle informing the LL Bill. One in the absence of the other becomes meaningless. Transparency on its own has limited virtue while accountability without transparency is incredible. By introducing the RTI Amendment Bill, the Government has called upon Parliament to contradict itself on principles which are fundamental to our democracy. This position was recognised by the Law Commission in its report on electoral reforms in the following words:
“…it must be said that if democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the political parties which are integral to parliamentary democracy.“8
We therefore conclude this submission by urging this Committee to recommend to the Government withdrawal of the RTI Amendment Bill and advise all political parties to take necessary steps to honour their obligations under the RTI Act of transparency to THE PEOPLE OF INDIA.