Recently, the Supreme Court in D.A.V. College Trust and Management Society Vs. Director of Public Instructions held that non-governmental organizations which were substantially financed by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the RTI Act, 2005. Also read: RTI Act Basics of Right to Information Act, 2005:
Who is Public Authority? As defined in Section 2 (h) “public authority” means any authority or body or institution of self-Government established or constituted – a) Under the constitution b) By any law by Parliament c) By any law by State Legislature d) By an order made by the Government, including:
- body owned, controlled or substantially financed by the Government
- non-Government organization substantially financed, directly or indirectly by funds provided by the Government
What is Right to Information Article 19(1) of the Constitution has given the fundamental status to the right to information in 2005. What is RTI Act Under the provisions of the Act, a citizen may request information from a "public authority" (a body of government) which is required to reply within thirty days. In a decision of Sarbajit Roy versus Delhi Electricity Regulatory Commission, the Central Information Commission affirmed that privatized public utility companies continue to be within the RTI Act. What are political parties? The Political Parties have been given statutory status under Section 29A of the Representation of the People Act, 1951. RPA also allows political parties to receive voluntary contributions from anyone including corporate companies (but not government companies) and exclude contributions from foreign sources.
Analysis: In the D.A.V. case, SC held that ‘substantial’ means a large portion which can be both, direct or indirect. It need not be a major portion or more than 50%. For instance, if land in a city is given free of cost or at a heavily subsidized rate to hospitals, educational institutions or other bodies, it can qualify as substantial financing. The case of political parties under the purview of RTI? The Central Information Commission (CIC) ruled that six national political parties of India will be deemed to be public authorities. This verdict meant that these parties will now be subject to the Right to Information (RTI) Act, 2005. The Right to Information (Amendment) Bill, 2013 was introduced in Parliament to keep political parties explicitly outside the purview of RTI that lapsed after the dissolution of the 15th Lok Sabha. In 2019, a PIL was filed in the Supreme Court seeking a declaration of political parties as ‘public authority’ and the matter is sub judice. If SC decides in favor of keeping political parties under RTI, Six national parties will be accountable to the public and will have to disclose the details of their income, expenditure, funding and donations and the identity of donors. Should political parties be covered under RTI? Are national parties ‘substantially financed’ by the Central government? It can be argued that national parties are ‘substantially’ financed by the Central government. If an entity gets substantial finance from the government, then any citizen can ask for information to find out whether his/her money which has been given to the entity is being used for the requisite purpose or not. Political parties get various concessions, such as
- Allocation of land, accommodation, bungalows in the national and State capitals: Every national party is entitled to run an office on government land in Delhi/state capitals for three years. National presidents of designated national political parties qualify for residential accommodation in Delhi if they don't have any other in any other capacity.
- Tax exemption against income under Section 13A of the Income Tax Act: As already mentioned, political parties are allowed to accept voluntary contributions under RPA. However, Section 13A has given 100% exemption to political parties on its income from house property, income from other sources, capital gains and voluntary contributions received from any person however, subject to conditions.
- Free air time on television and radio: The facility of use of Doordarshan (DD) and All Indian Radio (AIR) is available for canvassing in the elections to the House of People and Legislative Assemblies of certain states, to those seven National Parties and 52 State Parties, which are at present recognized as such National or State Parties, under the provision of the Election Symbols (Reservation and Allotment) Order, 1968.
Arguments for and against
For Against The Political Parties hold constitutional status and wield constitutional powers under the Tenth Schedule of the Constitution in as much as they have the power to -a) disqualify legislators from Parliament and State Assemblies; b) bind legislators in their speeches and voting inside the house A political party is a “voluntary association of citizens” who believe in an ideology. They hold free and frank discussions. Declaration of a party as a public authority would “destabilize the party system in the country. Under Section 29A (5) of the Representation of People Act, 1951, the Political Parties are required to bear true faith and allegiance to the Constitution of India as by law established. Therefore, political parties so registered must furnish information to the public under the right of the information under Article 19(1) (a) of the Constitution of India. Political Parties are formed under the act of Parliament i.e. under the Representation of People Act, which is not the same thing as being created by the Parliament. Therefore, until and unless the law is changed, it will be difficult to bring political parties under the ambit of the RTI act. The Political Parties give tickets to the candidates and the people vote on party symbols and, thus, the Political Parties are important instrumentalities of democratic governance. Disclosure of information under the RTI act may give an advantage to their competitors. Opponents would use the RTI Act as a tool to gain access to confidential information. Political parties receive substantial, direct and indirect, funding from the government. So on the basis of section 2 (h) (ii) of the RTI Act, these parties are substantially funded by the state and, hence, should be deemed public authorities. Political parties do not want to disclose their internal working as well as their decision-making system. But there is a section 8(1) in the RTI act that has ten exemptions within it. It will protect a political party from disclosing all types of information. Nearly two-thirds of political donations of registered political parties are from so-called ‘unknown’ sources. Electoral Bonds are not promoting transparency in political funding as donors remain anonymous to the public. The government says that ‘Electoral Bonds’ have increased transparency in political parties’ functioning Their sources of income are not known and income-tax filings are not made public. So keeping financing and donor’s secret can raise suspicions of quid pro quo. They are already accountable to the Election Commission. They submit expense details to the Election Commission of India. They file their returns with the income-tax department. It can be published by the EC but not published.
Recent developments Recent controversial amendment The Right to Information (Amendment) Bill, 2019 amended the Right to Information Act, 2005. The Centre shall have the powers to set the salaries and service conditions of Information Commissioners at central as well as state levels. Term of the central Chief Information Commissioner and Information Commissioners: appointment will be “for such term as may be prescribed by the Central Government”. What did the original RTI act say? It prescribed salaries, allowances and other terms of service of the state Chief Information Commissioner as “the same as that of an Election Commissioner”, and the salaries and other terms of service of the State Information Commissioners as “the same as that of the Chief Secretary to the State Government”. Now, these “shall be such as may be prescribed by the Central Government”.
About CIC: The Central Information Commission (CIC) is set up under the Right to Information Act. The Chief Information Commissioner heads the Central Information Commission. This body hears appeals from persons who have not been satisfied by the public authority and also addresses major issues related to the RTI Act. The Chief Information Commissioner and Information Commissioners are appointed by the President on the recommendation of a committee consisting of—
- The Prime Minister, who shall be the Chairperson of the committee;
- The Leader of Opposition in the Lok Sabha; and
- A Union Cabinet Minister to be nominated by the Prime Minister.
Way forward: Public funding of elections in India: To check rising costs of elections and the steady influx of ‘black money’ into the country’s political system, public funding of elections can be done. it reduces the dependence of parties on big private donations. The 255 Law Commission Report (2015) has insisted that regulatory frameworks dealing with transparency, disclosure, auditing and submission of accounts and internal democracy of parties must precede any attempt at complete state funding. Currently, there is no constitutional or statutory prohibition on receipt of anonymous donations by political parties but just a partial cap. Under section 29C of The Representation of the People Act, 1951, political parties are mandated to declare all contributions above Rs20,000. A cap should be put to control the rising election costs. Political parties should disclose the source of Electoral bonds. The Election Commission of India (ECI) has told the Supreme Court that electoral bonds are wrecking transparency in political funding.
What is the Electoral Bond Scheme? A donor may buy an electoral bond at specified banks and branches using electronic modes of payment and after having completed the KYC (know your customer) requirements. The political party will have to deposit the encashed money in a bank account it has informed the Election Commission about. The rules for declaring sources of funding for political parties are outlined in Section 29C of the Representation of the People Act, 1951. Prior to 2017, the Act said all registered parties had to declare all donations made to them of over ₹20,000. But a recent amendment to the RP Act allows political parties to skip recording donations received by them through electoral bonds in their contribution reports to the ECI. The problem, according to political analysts and watchdog bodies, is that large donations were anonymous. It allows political parties not to disclose the source of these bonds. The parties do not have to disclose where their money comes from, as long as the mode of funding is through electoral bonds.