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RTI- Powers to the Governed versus Alleged intention to dilute it by Government

10

OCT

2019

Introduction:

Recently, the Right to Information (Amendment) Bill, 2019 has been passed by both the houses Lok Sabha and Rajya Sabha which seeks to amend Sections 13, 16 and 27 of Right to Information Act, 2005, which received huge hue and cry both in the houses as well as from the general public. The amendments propose that the central government will prescribe the term of office, and the salaries, allowances and other terms and conditions of service of information commissioners (both central and state). This amendment is being seen as regressive in nature as it would lead to unaccountable power to the government because the amendments will undermine the independence of information commissioners which will ultimately reduce to an agency of the government rather than an independent organization. In a country where arbitrary use of power by government has become order of the day, the legislation like RTI Act, 2005 has been instrumental in empowering public to control the arbitrariness of the Government. On the other hand, the recent judgment of SC in D.A.V. College Trust And Managing ... vs Director Of Public Instructions has provided more power to the people by holding that the non-governmental organisations which were substantially financed by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005.

Public Authority and its extension to the political parties

The D.A.V. judgment (supra) will have wider implication in connection with the ambit and scope of the RTI, Act to the political parties. Section 2(h) of the Act describes that there are 4 types of public authorities, namely the authorities set up:

(a) under the Constitution,

(b) by an Act of Parliament,

(c) by any law made by State Legislature, or

(d) by notification issued or order made by the appropriate Government and must be controlled or substantially financed by the appropriate government.

However, the SC went on to interpret that Section 2(h) of the Act includes 6 categories and not 4 by giving purposive construction of the Section and held that sub clause (i) body owned, controlled or substantially financed; (ii) non­Government organisation substantially financed of Section 2(h), cannot be read with above mentioned clause (d) rather are separate clauses. The SC held that adding an inclusive clause in the definition, Parliament intended to add two more categories. The SC acknowledged that the said Section is unartistically worded and it was their duty to analyse the said Section to give its true meaning and interpret in a manner which is in-line with the object of the Act and intention of the legislature.

The implication of the above interpretation is that any NGO whether set up by any notification or order of the appropriate government which is substantially financed by the funds of appropriate government directly or indirectly will be a public authority. This judgment must be lauded with all noise as it empowers the public to seek information from any NGO which are substantially financed by the Government. Further, the SC held than there is no straight jacket formula of 50% or more to define substantially financing rather held that if the NGO’s functioning is dependent on the finances of the Government then there can be no manner of doubt that it has to be termed as substantially financed.

With the above pre-text as held in the D.A.V case, can it be said that political parties which receive substantial funding from the government be brought under the definition of “public authority”? In this connection, a historic judgment had delivered by full bench of Central Information Commission (CIC) in case of Mr.Anil Bairwal vs Parliament of India in June 2013, holding that national political parties are public authority and comes under the purview of the RTI Act, 2005. Now drawing an analogy from the D.A.V. judgment, the pertinent question which lies ahead is whether these political parties are substantially funded by government or not? Two steps can be devised as per the D.A.V. judgment, which are as follows:

Step A: Whether political parties are financed by the funds of the government.

Step B: If financed, whether the financing is substantial.

Answer to first step is that indeed political parties receive various benefits which amount to financing, for example heavy tax exemptions under Section 13A of the Income Tax Act, 1961. This tax exemption is relatable to indirect financing of the Political Parties. Further, these political parties have been allotted land in prime location by government either free of cost or at concessional rate which also amounts to indirect financing. Election commission of India also spent money on political parties for providing facilities such as free electoral rolls. Additionally, Doordarshan and All India Radio provide free air time for broadcasting their advertisement at election time which results in loss of revenue. Therefore, it is quite evident that political parties are being financed by the government.

Now as per second step, it is essential to determine whether the financing is substantial or not. Drawing analogy from the SC judgment in the D.A.V case, it is not the percentage of contribution which is important to decide substantial nature of financing rather what is important is whether functioning of these political parties are dependent on the finances of the Government. It is clear from the analysis in the first step that the nature financing is quite substantial as the functioning of this political parties heavily depends on the finance of the government be it grant of land, tax exemption, free air time during election etc. Additionally, if the contribution of fund to the political parties is added it will run into more than 100 crore.

It is also the nature of work these political parties do reflect that they should be considered as public authority. These political parties claim, at one hand, that they are conduit to fulfil the aspirations of common public by representing their voice in the parliament and on the other hand they clearly deny that they come under the ambit of the RTI Act. This clearly underscores the apparent contradiction in their claim because access of information from the political parties by people is public aspirations only.

Right to Information (Amendment) Bill, 2019 and its impact on the SC’s ruling.

The SC ruling in D.A.V case is laudable as it further the object of the RTI Act, 2005 which aim at creating of an ‘informed’ citizenry, containment of corruption and holding of government and its instrumentalities accountable to the governed. But can this object be fulfilled if the CIC becomes an instrument of the central government. The recent amendments in the RTI Act, 2005 which proposes to govern the terms of service of the information commissioner. This amendment will empowers the Central government to unilaterally decide the tenure, salary, allowances and other terms of service of Information Commissioners, both at the Centre and the States. Under these circumstances, the independence of information commissioners will certainly be undermined and diluted. The Information commissioners would not be able to deliver impartially judgment like Mr. Anil Bairwal vs Parliament, or any judgment which may be prejudicial to central government, considering the fact that their tenure, salary, allowances and other terms of service will be decided by the central government and therefore the CIC will become a toothless tiger in front of Central Government.

Conclusion:

Bringing NGOs within the ambit of RTI Act, 2005 is welcome move and must be celebrated. However, at the same time the proposed amendment to dilute the independence of information commissioner and dismantling the present architecture of the RTI Act is worrisome and shook the confidence of RTI activists and general public in the democratic set up. Having said so, we should be hopeful that RTI has been and will defend attack on itself and propagate the movement of transparency and accountability in India in future to come.

About the Firm

LexOrbis
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Tel 91-11-2371 6565
Fax 91-11-2371 6556
Email manisha@lexorbis.com
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