The CIC Order

Of Political Party and Public Authority

Abhijit Guha

The recent order issued by the Central Information Commission (hereafter CIC) which declared the six national level political parties as public authorities coming under the purview of the Right to Information Act (hereafter RTIA) 2005, has raised uproar among the politicians. The six political parties are:
1.    Indian National Congress / All India Congress Committee (AICC);
2.   Bhartiya Janata Party (BJP);
3.   Communist Party of India (Marxist) (CPM);
4.   Communist Party of India (CPI);
5.   Nationalist Congress Party (NCP); and
6.   Bahujan Samaj Party (BSP).

The CIC order categorically stated that all the aforementioned political parties 'have been substantially financed by the Central Government under section 2(h) (ii) of the RTI Act. The criticality of the role being played by these political parties in Indian democratic set up and the nature of duties performed by them also point towards their public character, bringing them in the ambit of section 2(h). In this connection, it is better to quote section 2(h) of the RTI Act 2005 for the convenience of the readers:

Section 2(h) of the RTI Act defines 'public authority' as follows :-(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 made by the appropriate Government, and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

This means that by this order the political parties are to be considered as public authorities and any citizen of India can file RTI applications to know all kinds financial, administrative and organizational information of those parties. The CIC order has raised a concern among all the political parties whose leaders till the other day were not at all worried with RTIA as much as like the civil society organizations and human rights groups. RTIA was not within the main agenda among the political parties whether they were in the ruling coalition or in the opposition bench at the centre or in the various states of the country. All the major national dailies, particularly The Hindu meticulously reported the debates around the CIC decision. The leading social science journal of the country Economic and Political Weekly supported the landmark CIC decision in its editorial published on 22 June 2013 on the ground that it will strengthen the democracy by introducing transparency and accountability of the political parties. All the major national level political parties on the other hand opposed the decision of the CIC on the ground that the political parties are not public authorities like the governments, so they do not come under the purview of the RTI Act. The civil society organizations (including Aruna Roy, the pioneer of RTI movement in India) have extended their full support to the CIC decision. Notably a good number of Ministers belonging to the Indian National Congress have expressed their vigorous opposition to the order. It is learnt from media reports that the central government after studying the CIC decision is planning to bring an ordinance which will keep the political parties outside the ambit of the recent CIC decision. Not unsurprisingly, the RTI activists have also started counter-campaigns to stop the Central Government from promulgating the aforesaid ordinance. This is the general scenario which prevails in the country as regards the CIC order to bring the political parties under the RTI Act.

The details of the CIC decision
The CIC decision to bring political parties under the purview of the RTI Act was issued on 3 June 2013 to adjudicate RTI applications filed by Shri S C Agarwal and Shri Anil Bairwal of the Association for Democratic Rights (ADR) in 2011. It is interesting to go through the text of the CIC decision which was taken in a full bench constituted by the Chief Information Commissioner, Shri Satyananda Mishra and two information Commissioners Mrs Annapurna Dixit and Mr M L Sharma. The decision is the lengthiest of all the decisions (54 pages) so far issued by CIC. The way the CIC bench marshalled its facts and lined up its arguments is remarkable. The text of the decision most interestingly began by quoting a classic work in political science. The information commissioners quoted from Prof Harold J Laski's classic text.i The Grammar of Politics (1925)ii to substantiate their argument that in a constitutional democracy the citizens have to make their choices to elect representatives from the political parties to run the government for public good. The CIC then went on to explicate Laski's observation through a series of factual presentation of the ways by which political parties in India are (i) empowered by the 10th Schedule of the Constitution to disqualify elected legislators on certain grounds from membership, and further, (ii) a political party is required to be registered by the Election Commission of India under section 29A of the Representation of People Act, 1951, and, (iii) under section 29C of the RP Act, 1951, a political party is required to submit a report for each Financial Year to the Election Commission of India in respect of contributions received by it in excess of 20,000 rupees from any person as also contributions in excess of 20,000 rupees received from non-Government companies.

The CIC then raised a vital point. The point is, it is a fact that political parties are not 'established or constituted by and under the Constitution; nor by any other law made by Parliament or the State Legislature; nor are these bodies owned or controlled by any appropriate government'. If this is so, then can they be regarded as 'public authorities' like the governmental organizations? According to CIC, 'political parties have been brought into existence first as political parties and then as national level political parties by the Election Commission of India thereby entitling them to a host of benefits, the principal among them being the right to accept contribution from both individual citizens and private companies and also to get complete income tax exemption on all their incomes. The other important benefit that accrues to these political parties on account of their recognition by the Election Commission of India as national level political parties is the common symbol on which their candidates can contest elections'.

After this, the CIC demonstrated with facts and figures that the six national level political parties on which the RTI applications were filed have been substantially funded by the government in the form of providing land at concessional rates, allotment of houses on rental basis on concessional rates and total exemption from payment of income tax on their incomes. The political parties enjoy an almost unfettered exemption from payment of income tax, a benefit not enjoyed by any other charitable or non-profit non-governmental organizations. Last but not the least, the political parties are beneficiaries of free air time on All India Radio and Doordarshan before the elections.
By observing all the above facts together, the CIC concluded :
'We have, therefore, no hesitation in concluding that INC/AICC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the Central Government and, therefore, they are held to be public authorities under section 2(h) of the RTI Act'.

What Political Parties Say
Not unsurprisingly, all the six political parties who were party to this historic decision of the CIC were united to oppose CIC on several grounds. The CIC in its order has neatly summarized the arguments placed by the political parties under points 87-92(pp. 51- 53) during the hearings of the case. The arguments of political parties against the CIC decision ranged from bland assertion (INC/AICC and the BJP) through partial disclosure of information [CPI (M)] to an utterly contradictory stand (CPI).

Only six days after the issuance of the CIC decision, Mr Prakash Karat, the General Secretary of the CPI(M) wrote an article in People's Democracy, the weekly organ of the party on 9 July 2013. The article is entitled "CIC is Wrong : A Political Party is not a Public Authority". Let us examine Mr Karat's arguments. Mr Karat however, began his article by praising the RTI Act :
Under the RTI Act, anyone can access information from government or a state institution regarding the decisions taken, about the expenditure incurred and the relevant file notings on matters concerning the body. The purpose of the act is to allow citizens’ access to information about the government and publicly funded state institutions which may affect the lives of the rights of citizens. The CPI (M) had supported the legislation and its adoption as a democratic step forward.

But then Mr Karat expressed his displeasure with the CIC decision. According to him,
'Political parties are not governmental organisations or state funded entities. There is no constitutional provision for a political party. A political party is an association of citizens who come together voluntarily to form a party. This can be on the basis of the fact that they subscribe to a particular ideology, programme and leadership, which the party stands for or espouses.'

It seems that Mr Karat did not carefully go through the steps through which the CIC arrived at its conclusion. Nowhere in the order did the CIC mention that the political parties are "governmental organizations". CIC only stated and quite explicitly, that political parties are institutions which are indispensible in constitutional democracy and influence and affect the lives of the public in a substantial manner and should be transparent and accountable to the public, like other 'public authorities'. It is better to quote from the CIC text. :
The Political Parties mobilize public opinion around their ideologies and beliefs and contest elections to form government. No democracy can exist today without Political Parties. An ordinary citizen does not have direct access to the government except through his elected representative and cannot hope to be part of the government without being a member of a Political Party…. Political Parties continuously perform public functions which define parameters of governance and socio-economic development in the country.

Mr Karat will not disagree with the opinion of the CIC as regards the public functions performed by the political parties. But then, why is he so much apprehensive about the extension of the RTI Act to political parties? The answer to this crucial question is given by Karat himself in the People's Democracy article.

Now by the CIC's new order, anyone can ask for access to internal deliberations of a political party. They can ask for relevant material and papers which went into the decision making and the views of various office-bearers of the party concerned. If such a procedure is adopted, it will harm the very mode of inner-party functioning. Within a party, discussions are held and it is on the basis of confidentiality that certain decisions are taken. To demand that such deliberations be made available will be a serious infringement on the nature of inner-party discussions and the way decisions are taken by a political party. This can lead to an undermining of the structure of political party itself. By such a dispensation under the RTI Act, for example, a BJP member can demand information about the internal matters of the CPI(M) and vice versa. Opponents of a political party can thus utilise the RTI Act as an instrument against another party.

It is evident from the above quotation that Mr Karat and his party would like to maintain 'confidentiality' as regards the 'views of various office-bearers of the party' which went into the decision making process of the party resembling bureaucrats who also wanted to make documents and files under the label 'confidential' and before the promulgation of the RTI Act the colonial Official Secrets Act 1923 was in full force to maintain such confidentiality. Then, what is the difference between a government bureaucrat and the Secretary of the Communist Party of India (Marxist)? Mr Karat fears that if the RTI law is extended to political parties, then it may be misused by one political party against the other. So what? If BJP uses RTI to know the decision making process of the CPI (M), then, CPI(M) could also use the same for the BJP. Going by the results of these RTI revelations people will then be in a better position to judge on the basis of real facts which party followed more democratic decentralization for arriving at decisions. Because, it is not only the decisions of political parties which are important for the public, but also the method of decision making are crucially important.At present political parties blame each other for being undemocratic, authoritative or dependent on charismatic leadership based on media reports which are again challenged as unfounded by the opponents leaving the public in a confused state of affairs.

Furthermore, the significant question is not whether the political parties are public authorities but whether they are accountable to the public or not. By not allowing the transparency law to cover the functioning of the political parties, Mr Karat has tried to treat them as secret societies or fundamentalist organizations which maintain extreme level of secrecy and confidentiality, under the garb of 'democratic decentralization'.

In his article, Mr Karat advanced another argument to challenge the CIC observations as regards the granting of free air time by the government to the political parties in All India Radio and Doordarshan during the elections. According to him
‘…..much is made of the time slots given to political parties in the state-funded media like Doordarshan and All India Radio. The effort to quantify the money involved in terms of prime time advertisements is unfounded. First of all, election broadcasts or telecasts cannot be quantified in commercial terms. Secondly, their role in election propaganda of the political parties is negligible and the funds spent on other forms of election propaganda by the parties and candidates are of a much larger magnitude.’

The above argument put forward by Mr Karat seems to be untenable for two reasons. First, any broadcast whether made through radio or television involves some cost. Can any political party run any radio station or TV channel without any monetary cost? Do the political parties sell their newspapers and magazines without any price? Do not the political parties print advertisements in their newspapers for earning money either from the government or other private organizations? So, the time granted to the political parties as free air time in the national radio and television definitely incurred some cost and the money had come from the taxpayer's purse and the political parties enjoyed the money. Even a beggar becomes a taxpayer when she purchases a matchbox, since the government earns sales tax from the sale of the matchbox. The second part of Mr Karat's argument points to the fact that political parties spend 'a much larger magnitude on other forms of election propaganda,' compared to the amount spent by the government through the granting of free air time in All India Radio and Doordarshan.If that is so, then every citizen has a right to know about the amount and sources of those huge funding received by the political parties. How these can be known without the application of the RTI Act under the existing situation? Currently, political parties are required to declare donations made to them by individuals and organizations above Rs 20,000. Contributions below the amount go unnoticed by the Election Commission and this is considered to be one of the major loopholes in the existing legal provisions which could be easily manipulated. Under an RTI regime extended to the political parties citizens would be able to know about the magnitude and sources of any amount of donation made to political parties.

The present scenario
At the time this article is sent to the editor of Frontier media reports revealed that the central government after studying the 3rd June 2013 CIC decision is preparing a bill for the ensuing monsoon session of the Parliament to amend the RTI Act to keep the political parties outside the ambit of the transparency law. According to media reports, the proposed amendments would include a clause, which states that declaring political parties as public authorities under the purview of the RTI Act would 'hamper their smooth internal functioning as it will encourage political rivals to file RTI applications with malicious intentions'. It seems that Mr Prakash Karat's apprehensions expressed clearly in his People's Democracy article has convinced the ruling political rivals of the Communist Party of India (Marxist). Undoubtedly, if the aforesaid bill is moved in the Parliament, the RTI activists may also move to the apex court of the country and finally much would depend on the action of the Supreme Court and the President of India to solve the imminent constitutional crisis which in all likelihood would affect the lives of people and the various organs of the State. ooo
i.    Harold Joseph Laski (30 June 1893–24 March 1950) was a British political theorist, economist, author, and lecturer. He was active in politics and served as the chairman of the British Labour Party during 1945-1946, and was a professor at the London School of Economics from 1926 to 1950. He first promoted pluralism, emphasizing the importance of local voluntary communities such as labour unions. After 1930 he shifted to a Marxist emphasis on class conflict and the need for a workers' revolution, which he hinted might be violent. His teaching greatly influenced men such as Jawaharlal Nehru. He was perhaps the most influential intellectual in the Labour Party, especially for those on the left who shared his trust and hope in Stalin's Soviet Union. ( accessed on 24.07.2013)
ii.   One of the most important commentators of Laski is Ralph Miliband( 1924-1994), a sociologist and a prominent Marxist thinker observed, 'The Grammar of Politics' is one of the most comprehensive attempts ever made by an English Socialist to give concrete meaning to the ideals of the Labour Party. Sidney Webb, who was not given to exuberant praise, called it a 'great book'. The modem reader is unlikely to go quite so far, not least because so many of the ideas of the Grammar have now been accepted as part of the common currency of contemporary thought. But there can be no doubt that it remains one of the few fundamental 'texts' of English Socialism'. (The Socialist Register 1995 accessed through Google socialistregister. com/index.php/srv/article/dawnload/5 660/2558 on 24.07.2013)
Sources :
1     CIC decision: (Accessed on 30.06.2013).
2.   National Election Watch, ADR: 20com e%20under%20RTI% 20 Act (English). pdf. (Accessed on 30.06.2013).
3.   Karat, P. 2013. 'CIC is Wrong: A Political Party is not a Public Authority'. People's Democracy. Vol. XXXVII No. 23 June 09, 2013.
4.   'CIC's Nudge',2013. Editorial. Economic and Political Weekly. Vol. XLVIII, No.25, pp.7-8.
5. The Hindu. 3, 4, 5, 7 June 2013.
6. The Times of India, 20 July 2013.

Frontier, Autumn Number
Vol. 46, No. 13-16, Oct 6 - Nov 2, 2013

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