The Asian Human Rights Commission (AHRC) congratulates India and the people of this great nation, on its 67th Independence Day.
The AHRC, however, is concerned to learn that, on 12 August 2013, the Ministry of Personal, Public Grievances, and Pension, on behalf of the Government of India, has introduced a Bill in the lower house of the Indian parliament, the Lok Sabha, seeking an amendment to the Right to Information Act, 2005 (RTI Act). The Bill proposes to remove political parties from the scope of the operation of the principal Act, the RTI Act.
The right to information movement and the law that came into force on 12 October 2005 is considered to be the second independence movement in India. The RTI Act is a watershed event in the country and is emulated across the world, since this statute empowers every citizen to seek and obtain information, most importantly information concerning the rationale behind government decisions and their implementation. The law has brought to the forefront a citizen’s right to be informed, and, if sensibly used, has the potential to fasten transparency and accountability in governance.
The disclosure of information concerning the functioning of a government must be the norm, not an exception. In a parliamentary democracy this norm assumes high value, in principle and practice. Fastening the same norm – to be informed – to political parties that form and participate in governance, is its mere commonsense application.
It is disheartening to learn that the Government of India, on the eve of the country’s 67th Independence Day, has introduced such a Bill to limit this freedom of its citizens. It is an irony of the time, that a government, led by the Indian National Congress is tabling a law in the Indian parliament to limit the rights of citizens to know how political parties operate internally. It was the same principle that the Congress led independence movement decried during the British Raj, alleging that the political parties that sit in the British Parliament are not to decide what is best for Indians, and claiming it as an exclusive right for every Indian.
It is trite to argue that in today’s environment of a multi-party democracy each citizen has a right to know the internal functioning of the political parties that contest elections and later form governments. The true roots of a parliamentary democracy, in such a system, are closely associated with the rationale behind political formations that contests an election, and later influences a government’s policies, by participating in governance.
Beyond the manifestoes that political parties publish before each election, it is the right of every citizen to know what policies a party will follow and where such policies stem from. In the context of massive industrial and economic transformations that are happening in India, such information is vital to limit the possibility of business houses sponsoring political parties to run elections, form governments, and expect legitimate returns for their investments.
‘Saving’ political parties from the ambit of the RTI Act will actually limit the scope of intraparty democracy. And a political party that does not tolerate internal democracy is unfit to seek participation in a democracy.
The freedom to be informed is guaranteed under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which India has ratified. General Comment No. 10: Freedom of expression (Art. 19) issued on 29 June 1983 defines the scope of Article 19 of the ICCPR as:
“protection of the right to freedom of expression …includes not only freedom to ‘impart information and ideas of all kinds’, but also freedom to ‘seek’ and ‘receive’ them ‘regardless of frontiers’ and in whatever medium, ‘either orally, in writing or in print, in the form of art, or through any other media of his [her] choice.’”
Political science equates material support to parties or candidates with political corruption and bribery. To reasonably check this tendency, in advanced democracies, stringent legislations are in place that mandate political parties and their affiliated entities to publically disclose, each year, income and expenditure, including the sources of funds and the heads under which the same was actually spent.
For instance, in Germany, political parties are bound to publicly account for all their income and expenditure. The requirement is built into Germany’s basic law, in Article 21 of the German post-war constitution.
The German basic law recognises political parties as one of the primary players of democracy in the country. The constitutional mandate along with parts IV and V of The Act on Political Parties, 1967 (as amended on 20 December 2004) fastens financial transparency upon political parties. In 1984, a general format for the comprehensive reporting of income and expenditure, debts and assets, by each party was implemented. Sections 23 (b), 25, and 31 (d) of the Act mandates parties to timely report large donations.
The Act regulates how parties are financed in Germany and the level of public funding they are allowed to receive. The criterion for the distribution of these funds is the extent to which the parties are rooted in society. This is measured, firstly, by how many votes a party gained in the most recent European, Bundestag, and Land parliament elections. Secondly, the amount of money raised through members’ subscriptions, contributions made by office holders, and legally obtained donations is also factored into the decision.
The amount of public money that flows to the parties entitled to receive state funding is set on 15 February each year. Section 19 (a) of the Act assigns this executive function to the President of the German Bundestag.
In India, on the contrary, such transparency is limited to Section 29 (B) and 29 (C) of the Representation of The People Act, 1951. Section 29 (B) allows political parties to accept any amount as contributions, unless such contributions are from foreign sources or a government company, in which case it is prohibited. Section 29 (C) of the Act stipulates that a political party, in each financial year, is to prepare a report of contribution in excess of Rs. 20,000, failing which it will curtail a political party from claiming any income tax relief under the Income Tax Act, 1961, as amended by the Finance Acts promulgated every year. Political parties in India exploit this dexterity, of accepting material support, and, by choice, not reporting it.
It is in this context that the Central Information Commission (CIC), in a ruling, brought six national political parties in India under Section 2 of RTI Act, by defining them as public institutions. The six parties are the Indian National Congress, the Bharatiya Janata Party, the Communist Party of India, the Communist Party of India (Marxist), the Nationalist Congress Party, and the Bahujan Samaj Party. The verdict raised hope for ensuring transparency in the country’s political institutions. The verdict was also a culmination of the long campaign by the civil society and RTI activists in India to make the opaque political space transparent in the country.
Political parties are the buffer between the citizen and the government. Members of the political parties are elected as legislative leaders and are assigned to uphold democracy and protect the rule of law. However, the argument by political parties – that the verdict by the CIC is an aberration in interpreting Section 2 of RTI Act – is in fact a negation of democracy and citizens’ freedom to be informed.
When the CIC ordered that six political parties be covered under the RTI Act the immediate reaction from these parties was that such application of the RTI Act would “hamper their smooth internal functioning since it will encourage political rivals to file RTI applications with malicious intentions”. Political parties argue that since they are controlled by the Election Commission, and have to file income tax returns, they are adequately controlled. However, as explained above, these provisions hardly bring any transparency in the functioning of political parties, as most of these documents are not in the public domain.
Transparency in governance is a crucial issue in India. Yet, given an opportunity, political parties, and the government they from in India, try to restrict it, for which they go to shameful lengths, as evidenced in the Mr. Ashok Shankarrao Chavan (petitioner) against Mr. Madhav Kinhalkar and Others (respondent). This case, notoriously known as the ‘Paid News’ case is pending before the Supreme Court of India as a Special Leave Petition, on appeal from the Delhi High Court.
The Union Law Ministry has filed a counter-affidavit on behalf of the government in the case. In the affidavit the government asserts that “the power of the Election Commission to disqualify a person arises only in the event of failure to lodge an account of expenses and not for any other reason, including the correctness or otherwise of such accounts.” In essence, the government claims that the Commission has no right to disqualify a candidate even if his accounts are found to be improper or fraudulent. It is expected that the Court will not accept this position since, by doing so, it would be virtually eliminating the powers of the Commission, and in the process making the statutory declaration of candidates, as required under the Representation of The People Act, 1951 a joke.
The Supreme Court, the Election Commission, and the Central Information Commission are trying to clean up the political landscape and through that flush off clogs that choke the government and governance. However, the political parties and vested entities like government ministries are trying to maintain the status qou that best fits a deeply corrupt political landscape that prevails in India.
It is in this backdrop that the amendment sought into the RTI Act requires serious consideration. The colonial Official Secrets Act, 1923, is still active in governance. It is used not only to maintain a culture of secrecy, but to hunt down whistle-blowers who make public corruption and conflict of interest atop government.
The AHRC believes any amendment to the RTI Act would negate its aims and objectives and will violate Article 14 of the Constitution, which guarantees equality before the law, and Article 19 (1) (a), which guarantees freedom of speech and expression. In the extent to which these two constitutional guarantees are realised in India does the true spirit of independence rest.
