First a disclaimer: I am a very strong well-wisher of the Association of Democratic Reforms (ADR) who successfully petitioned the Chief Information Commissioner to bring political parties under the RTI.
Having said that there, I am not convinced that the CIC order, while well intentioned, is legally valid.
Let's look at why.
On page 36 of its order, the CIC sets out the criteria required for any entity to be declared a public authority:
Section 2(h) of the RTI Act defines 'public authority' as follows:-"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
The CIC admits that neither (a), (b), (c) and (d) applies to political parties. 'They have not been 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.'
So then how did it declare political parties a public authority?
Mainly by invoking sub-clauses (i) and (ii), which pertain to substantial funding.
Yes it's true that political parties get major tax concessions and large tracts of properties in prime locations at highly subsidised rates.
But does that alone make them a public authority?
By the CIC interpretation,
any body substantially financed by the government is a public authority.
To pass an order on such a sweepingly loose interpretation of the law raises concern about potential misuse against a wide range of civil society institutions that might have partial government funding/support.
Worryingly, this has already happened. A note circulated by one of the petitioners in defence of the order points out that 'bodies that have been declared as Public Authority and are already under RTI are Indian Olympic Association, Sutlej Club Ludhiana, Christian Medical College and Hospital Ludhiana, Chandigarh Lawn Tennis Association (CLTA), Sanskriti School Delhi, St. Mary's School Delhi, KRIBHCO, NCCF, NAFED, Population Services International.'
I could think of some bodies in this list which should be under RTI, for instance the scandal-prone IOA. But should schools, clubs, tennis associations and NGO's who receive government funding (but are not run or managed by the government) also be brought under the purview of the RTI?
I tend to agree with Pratap Mehta in the Indian Express when he says 'under the guise of transparency, we should not unwittingly empower the state and its functionaries to dictate organisational forms'.
Moreover, there is a finer legal point. Congress lawyers like Abhishek Singhvi have argued that the substantial funding subsections (i) and (ii) should apply only
if the body satisfies the earlier stipulation of 2(h), of first being established by the government, and which the CIC has itself said is not the case.
But the order is silent on this aspect of the interpretation of the law.
The only aspect it appears to have gone into in some depth is how do you define substantial funding by the government (should it be 4% or, say, 40%?)
To this end, the CIC cites a number of Court judgments on the subject to find that 'gravamen of the above judgments is that for a private entity to qualify to be a public authority, substantial financing does not mean majority financing' and 'therefore (the CIC has) 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.'
Here's where things get even stranger.
As if aware that it's rested its arguments on a rather legally flimsy branch, the CIC does a sort of partial U-turn on its own admission that political parties are not created by government order. They go on to argue that because political parties are only legally recognised when they are registered with the Election Commission under the Representation of People's Act, and so they are in fact created by the government!
Here's the exact quote: 'if not strictly within the letter of this particular provision (d), but at least, in spirit, these political parties can be said to have been constituted by their registration by the Election Commission of India, a fact akin to the establishment or constitution of a body or institution by an appropriate government.'
Not only is this a reversal of their own position, this is also an odd argument.
As Pratap Mehta points out, even marriages have no legal sanctity unless registered. Does that bring them under the RTI?
The CIC then makes another tenuous argument, that political parties have statutory powers because they can disqualify MLAs. As the order says , 'more importantly, Political Parties can recommend disqualification of Members of the House in certain contingencies under the Tenth Schedule. The contention is that the aforesaid constitutional/statutory powers of Political Parties bring them in the ambit of the RTI Act. We find the above submissions (by the petitioners) quite compelling and unerringly pointing towards their
character as public authority.
The use of the word 'character' once again seems to suggest that the CIC is acknowledging that they are being highly creative with the RTI Act, declaring political parties as public authorities more for the manner in which they behave rather than the legality of their status.
The CIC then concludes by making some sweeping comments on the performance of public duty by political parties, and how closely they influence the national agenda: ''The ruling party draws its development programs on the basis of its political agenda. It is responsible for the growth and development of the society and the nation' and hence 'we conclude that Political Parties in question are Public Authorities.'
Again, well intentioned arguments based legally at least, on rickety scaffolding.
My contention to my friends in ADR and others at the forefront to bring greater transparency into the working of political parties is this:
We know that political parties are heavily funded by the government.
We know that they are far greater influencers of public policy than say, the Sanskriti School or the Chandigarh Lawn Tennis Association.
We know that they have a terrible track record of financial transparency.
We know they are opaque about their internal workings, even those that are in the public interest, for instance on inner party elections or selection of candidates.
And that they didn't even bother to make proper submissions before the CIC, which the order records with justifiable grievance.
But does that make them a public authority under the RTI Act as it exists today?
I am not sure it does.
Political parties have said they will challenge this, and they well might succeed.
But those fighting the good fight should not despair for two reasons. One, to ensure the sanctity of the CIC and the RTI Act, it is far more important that when it is applied, it is consistent and legally watertight, not based well-meaning but a highly tenuous interpretations of the law.
Two, the CIC order hopefully will serve as a warning shot across the bow to the arrogance of political parties who have so far demonstrated a complete disinterest towards even the basic criteria of financial transparency, and a complete indifference towards serious electoral reforms.