CIC’s order on political parties is a blow to transparency, rule of law

By Venkatesh Nayak*
The regime of transparency, established by the Right to Information Act, 2005 (RTI Act) received a body blow from none other than the very body appointed to champion its cause and effect, namely, the Central Information Commission (CIC). In an order issued on March 16, 2015, the CIC has thrown up its hands saying it cannot do anything about the six national level political parties which refuse to comply with its two-year old order declaring them public authorities under the RTI Act. So the CIC has decided to tamely wind up the inquiry into the complaints of non-compliance.

Background to the CIC’s order

Readers will recollect that a full bench of the CIC had in June 2013 declared six national level political parties namely, the Indian National Congress, the Bharatiya Janata Party, the Communist Party of India, the Communist Party of India-Marxist, the Bahujan Samaj Party and the Nationalist Congress Party, as public authorities with direct obligations to receive information respects from the people and decide whether or not the information sought should be disclosed.
By holding that these political parties were substantially financed by public funds and also pointing to their centrality to the democratic process in various spheres of decision-making, the CIC placed them on par with other public authorities that have similar obligations. Rather than challenge this decision in a court of law, all political parties, including the State level parties authorised the Central Government to bring amendments to the RTI Act to keep them all out of its ambit and prevent citizens from seeking any information from them directly under this law.
That Bill, though tabled in the Lok Sabha, died a natural death with the dissolution of that House in May 2014 despite a Parliamentary Standing Committee recommending its adoption without any change. Hundreds of thousands of people in India as well as those residing abroad joined the nation-wide campaign to leave the RTI Act unaltered. Realising that the public mood was unequivocally against retrograde amendments to the RTI Act, the six political parties chose to ignore the order instead.

Summary of the CIC’s order and its reasoning

Last year the RTI applicants in the original case and other votaries of transparency in the functioning of political parties, brought complaints to the CIC alleging non-compliance. Most of the political parties showed scant respect for the CIC’s proceedings. After making the motions of holding an inquiry over several months, a full bench of the CIC has finally decided to wind up the inquiry holding that it can do nothing to secure compliance with its own orders. As the political parties are not government departments, penalties cannot be imposed on any leader or member and even if imposed there would be no mechanism for realising it.
Compensation also cannot be awarded to the complainants under the RTI Act as there is no demonstrable loss or detriment caused to the complainants. The CIC refused to even make a recommendation to the authorities to withdraw the privileges and facilities provided to these political parties at the taxpayers’ expense. Instead the CIC has forwarded a copy of the order to the Department of Personnel and Training (DoPT) to look at the gaps in the RTI Act and take any action it may deem appropriate. I wonder why even that gesture was made.

What is wrong with this decision?

The CIC’s decision unwittingly or otherwise ends up creating an impression that it lacks the power (or ‘mettle’ or ‘spunk’ or ‘spine’ whichever expression you prefer) to ensure compliance with its orders. This is not the first instance where the CIC was faced with a situation of non-compliance. In 2009 when the CIC faced a similar situation where the DoPT persistently refused to comply with its order regarding providing access to “file notings” in accordance with the provisions of the RTI Act, the CIC issued notice about launching criminal action against the DoPT under the following provisions of the Indian Penal Code:
(1) Section 166 – Public servant disobeying law with intent to cause injury to any person;
(2) Section 187 – Omission to assist public public servant when bound by law to give assistance; and
(3) Section 188 – Disobedience to order duly promulgated by a public servant.
These offences invite fines and a prison term from two months to one year. When threatened with legal action, the DoPT fell in line. Incidentally, the RTI applicant in this case is also a complainant in the current political parties’ non-compliance case. Strangely, the CIC does not seem to have adopted such a course of action in the current case.

What next?

This episode makes a mockery of the principle of the “rule of law” which underpins our constitutional framework of governance. The ‘rule of law” in plain terms means- “be you ever so high, the law is above you”. Unfortunately, the political parties, whose members participated in the process of enactment of the RTI Act have sent a signal to the country that they can violate laws and lawful orders with impunity. The members of the full bench of the CIC, on the other hand, have simply abdicated their responsibility by feigning fatigue.
The faith of the people in the capability of the CIC to deliver justice which was fast eroding has now reached a nadir from which it will be difficult to extricate it unless there is a change of guard. By following Gandhiji’s practice of penance, the Commissioners who gave this woefully inadequate decision must resign from their offices. This is the only way they can salvage whatever is left of their reputation as Information Commissioners.
Meanwhile the hundreds of thousands of RTI users and supporters must come out on the streets demanding that political parties either comply with the June 2013 order of the CIC or challenge it in a court as per constitutional provisions. Blatant disregard for the law will only make them lose what little respect that the citizenry may still have for them.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi