Right To Information Act: A Case for amendment

It was on June 3rd that Central Information Commission (CIC) has ruled that political parties should be brought within the ambit of the Right to Information Act. In the rationale that CIC provided for this peculiar ruling it argued that political parties "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.”

It continues to argue that “The criticality of the role being played by these political parties in our democratic set-up and the nature of duties performed by them also point towards their public character, bringing them in the ambit of Section 2(h). The constitutional and legal provisions discussed herein above also point towards their character as public authorities.’’

It seems that two major points that are being raised by CIC in order to bring political parties under the purview of RTI can be enumerated as "substantially financed by the Central government" and their role in political structure of this country, which according to CIC makes political parties "public authorities".

To reach any conclusion of our own, one has to dwell into these claims. Let us be clear that political parties are not government department or part of it. In legal term they are completely separate from the state structure.

The financial support that CIC refers to mostly come as the ad spaces that government provides to different parties in order to ensure that electorate get to know the policies proposed by each parties. A noble attempt indeed in a country where government machinery still remains much more widespread than other private actors.

Now coming to the transparency part, as per the existing legal structure it is mandatory for all political parties to open up their accounts before Income Tax department and the Election Commission. No one can deny the fact that any citizen of this country can avail these information from the said organisation through RTI. If these organisation feel that it requires more information regarding financial situation from political parties it can call upon them to provide such information. Political parties are legally bound to produce such information before Income Tax Department or Election Commission.

Another point that CIC raises is the nature of political parties as 'public authority'. Public authority can be identified as "Any authority which has a legal mandate to govern, administrate a part or aspect of public life, such as all branches of the executive power of a state, province, municipality etc." As per this it is difficult to identify the political parties as public authority. Political parties does not govern any aspect of public life, they can never impose their will upon the public or are legally not part of any executive. There is wall between an individual working as a part of public authority (such as CM, PM etc) or as the member of a political party. A political party is a voluntary association of citizens who joined together based on certain ideology and works within a particular structure. Therefore undeniably all political parties are accountable to its members. This does not mean that any independent individual with no affiliation can be allowed to access such information. 

All political parties have their own strategies, criteria to decide in times of disagreement and organisational policies, which are their own internal matters. In any game situation it would be folly to let the opposition know your strategy. A system based on party politics can be seen as a situation of continues game where one should allow parties to have their privacy. At this point it can be conceded that CIC is within its legal rights to include political parties into public authority as the definition of public authority in RTI act allows for using the campaign spaces provide by government to make this declaration. If CIC tries to interfere in the internal matters using such excuses there is a chance that political parties might disavow the ad spaces provided by the government with citizens of this country ending up in the loosing side.

Freedom of Speech: Indian and US Constitutional Law

The debate over the freedom of speech and expression has become almost a daily incident in the popular media, academic circles or general conversation of citizens all over the world. India is no exception to this trend, rather it is exhorted here with unparalleled vigour among the general public. In such conversations in India, at least, United States of America is enthralled as the land of absolute free speech where the restriction such as we see in India does not come into picture.

These being said one must indulge in identifying certain important fact and concepts before embarking on an attempt to write about freedom of speech and expression as they presents themselves in Indian and US constitutional law.

It should be remembered that fundamental rights are different from the concept of human rights. Human rights are those inalienable right which every individual possess by the virtue of being a member of human species. As human rights are inalienable under no circumstance can it be violated. On the other hand fundamental rights are the gift of the state to its citizens. They cease to exists with the termination of citizenship of an individual by the state. Being a gift of the state to its citizens the constitution of a state is well within its rights to impose restriction on it. Like in Indian constitution the article regarding “freedom of speech and expression” finds its place among the fundamental rights as article 19(1)A along with certain restrictions on the said fundamental right. 

If such restrictions are not placed in the constitution itself, it remains under the authority of the courts (guardians of constitution) which are equipped with the ability to interpret the constitution to impose such restrictions on the fundamental rights as and when it seems to be in need of restrictions  after due consideration. In US constitutional law the authority to impose restrictions on fundamental rights rests with the US congress.

In Gitlow v. New York, (268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925) Supreme Court upholding the constitutionality of criminal anarchy statutes, it advocated that:

"It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom"

Court continues:

"That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question."

Even when subsequently it tone down its position on restrictions placed on free speech, US court maintained that states may prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.

The conclusion that emerged out of this was that the legislature may decide that certain speech can be prohibited. Those legislative decisions will be upheld if not unreasonable and will be enforceable rule punishable under law. Thus the state is provided with the authority to restrict the rights through evoking the concept of police power. This leads to a precarious situation where legislature can make laws to restrict rights but court can accept or struck in down if it identifies it to be reasonable or unreasonable respectively.

On the other hand in Indian by inscribing the list of reasonable restrictions in the constitution itself. Constitution limits the power that can be exerted by all three wings of government (Executive, Legislature and Judiciary). The legislature can only make laws in so far as it comes under the provisions provided in the constitution and supreme court does not have to be too creative as in US rather it should only consider whether the law passed by the legislature are in line with articles in Indian constitution.