The Central Information Commission’s (CIC) order to bring six large political parties under the ambit of the Right to Information (RTI) Act set the ball rolling for a head on collision between the political class and the civil society. There has been much name calling since, so much so that the outcries (and hashtags) of #SaveRTI have unceremoniously drowned all opposing viewpoints. The spectacle of politicians coming together in uncharacteristic haste has only added fuel to the fire.
It has been sixty six years since independence and many say that the credibility of the Indian political class has never been lower. Nonetheless, the case for including political parties under the RTI is not as straight forward as it is made out to be. It is not an “obvious to do” in our quest for transparency, and the political parties are not wrong in questioning this imposition. In fact, I think that if political parties do get included under the RTI, it’ll only do more harm than good. I am actually going to use this space to argue just that.
The Right to Information Act passed by Parliament in 2005 applies to bodies set up under the constitution or under some law, and bodies owned, controlled or “substantially financed” by the government. The term “substantially financed” is not defined – an unfortunate lacunae in the legislation. Using ambiguous terms and leaving them undefined for subjective interpretation is never a good idea as it inevitably leads to confusion and litigation.
Be as it may, the CIC expanded the scope of this term to rule that “substantial financing” does not imply “majority financing” and that tax exemptions, allotment of premium land for party work and accommodation in Delhi at subsidized rates is adequate ground for classifying political parties as substantially financed. Had political parties been taxed at normal corporate taxation rates, more than 30% of their income would have been would have been taxed away. This, the CIC observes, amounts to indirect financing. Moreover, since political parties are “continuously engaged in performing public duty” and wield significant (direct and indirect) influence on governmental power, they ought to be covered under the RTI.
In this particular instance, I think, the CIC is just hopelessly wrong.
If the same logic were applied to other not-for-profit organisations (registered under Section 25 of the Companies Act and exempted from paying income tax on the donations received) or companies provided hefty tax exemptions (for setting up export units in Special Economic Zones or new industries in difficult mountainous terrain), a large number of private organisations would suddenly find themselves under the ambit of the RTI. Many of these NGOs and companies lobby for changes in policy and thereby also exercise significant influence on government decision making in domains relevant to their areas of expertise. Given CIC’s rationale, I will be surprised if these bodies manage to stay out of the RTI for long!
Tax exemptions should never have been a consideration in the first place; only grants and loans should have been. I think it is imprudent to take such an expansive view of financing. In doing so, the CIC has pushed boundaries and infringed into the private space. This does not bode well for private organisations as it can significantly increase administrative costs and hinder decision making processes.
Let’s be clear: RTI is meant to empower the general public to demand information from the “State” – the public body. Private organisations and associations should be kept out of its purview.
For those who think that political parties have public character, let me argue otherwise. A political party is an “association of people”. It is a body that represents only its members and such other people who identify with its ideology and objectives. Simply put, it an “interest group” that seeks power directly through the political process. It does not represent the general population and, as such, cannot be answerable to it.
Unlike the government (or its agencies), a political party need not treat all sections of society equally - it can choose to be more favourably inclined towards a select group of people. For instance, a party that represents dalits is most certainly within its rights to raise concerns affecting only dalits or proposing electoral candidates only from the dalit community.
In the final electoral test, the general public gets the option to elect (and thereby pass judgement) on the candidates put up by the party. Only after being declared victorious, does the party candidate (and still, not the party) become answerable to the general public. Therefore, bringing political parties under RTI goes against this basic principle.
Now let me come to the second part of my argument: that including political parties under RTI can only do more harm than good. This might seem counterintuitive at first, but there is a very rational basis to it.
Under the RTI Act, public authorities are required to provide access to procedures and norms followed in decision making, minutes of meetings, records of instructions given and decisions taken – all information that gets generated and recorded as per the requirements of the law governing the public authority. The RTI does not require authorities to generate new information or improve the granularity of what gets recorded! Public authorities merely comply with the laws under which they have been set up, and only open their records to the public.
Therefore, if the regulating legislation does not require political parties to report (or for that matter, record) information on small donors, there is nothing that the RTI can do fill this lacunae.
If political parties really want to circumvent the RTI, they can easily do so by being careful about what goes in the minutes - because instructions are often passed orally unlike in a government office where there is strict requirement to get directions issued in writing. Political associations work in an informal setup, especially with respect to finances. A lot of black money gets used and often there is no trail. There is no way then for the RTI to help extract any useful (read: incriminating) information.
What the RTI will end up doing instead is this: it’ll hike the administrative burden on political parties and increase the requirement of resources. The RTI Act requires every public authority to appoint Public Information Officers in all administrative units. Coupled with the time and manpower required to process and contest appeals filed on denial of information, RTI could be a substantial drain on party resources.
The real solution lies in amending the regulating legislation (in this case, The Representation of the People Act, 1951) to make it mandatory for political parties to record information on donors and to get their accounts audited by, say, firms empanelled or approved by the Comptroller and Auditor General of India (CAG) before submitting to the Election Commission. The Election Commission can then make this information available to the public.
I understand that this is a more difficult reform, but the RTI cannot help bypass it.
Let me conclude by saying that in countries such as the US and the UK, the quantum of state funding available to parties and candidates is also substantial. Yet, political parties are not covered under the Freedom of Information Act. However, and rightly so, parties are subject to stringent reporting norms and auditing requirements that make the whole exercise far more transparent than in India.
I think there is need to tread carefully and to undertaken thorough deliberations before picking a side. There is a lot more to the debate, if one is willing to scratch more than just the surface.
The CIC order can be accessed here: http://goo.gl/oaAlzP
The writer is a policy researcher based in Delhi. He can be reached at [email protected]