The information was denied by the Central Public Information Officer of the Supreme Court “stating that information relating to declaration of assets of the judges of the Supreme Court of India and the High Courts was not held by or was not under control of the Registry of the Supreme Court of India”.

On first appeal to the appellate authority, Agarwal was told he “should approach the CPIO of the High Courts and filing of the application before the CPIO of the Supreme Court was against the spirit of Section 6(3) of the RTI Act”. Agarwal then filed a second appeal to the Central Information Commission.

The Central Information Commission is the highest statutory authority in the country for implementing the RTI Act. The appeal was upheld and the CPIO of the Supreme Court was directed to furnish the information requested.

A similar sequence played out over two other RTI applications filed by Agarwal to the Supreme Court on January 23, 2009 and July 6, 2009. In these applications, the information was denied “on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry”.

That’s when something unusual happened.

The CPIO of the Supreme Court filed a writ petition in the Delhi High Court against the Central Information Commission’s decision. A single-judge bench rejected the appeal on September 2, 2009. One of the central issues was “whether the CJI is a public authority and whether the CPIO of the Supreme Court of India is different from the office of the CJI; and if so, whether the Act covers the office of the CJI”.

Undeterred, the CPIO of the Supreme Court filed an appeal to a full bench of the high court. The appeal was also dismissed on January 12, 2010.

Now came the most startling development. The CPIO of the Supreme Court filed a writ petition in the apex court against the high court judgement. It was surprising because the administrative side of the Supreme Court was approaching the judicial side of the same court for relief.

The three writ petitions were heard together and the judgement was declared on November 13, 2019. It took almost exactly 12 years to come to the final conclusion that the Chief Justice of the Supreme Court of India is part of the Supreme Court.

The operative part of the judgement reads: “The office of the Chief Justice or for that matter the judges is not separate from the Supreme Court, and is part and parcel of the Supreme Court as a body, authority and institution. The Chief Justice and the Supreme Court are not two distinct and separate ‘public authorities’, albeit the latter is a ‘public authority’ and the Chief Justice and the judges together form and constitute the ‘public authority’, that is, the Supreme Court of India.”

Essence of the judgement

The essence of the judgement is that the functioning of the administrative side of the Supreme Court (as different from the judicial side) will be more transparent in future and that this includes the Chief Justice of India and the Office of the Chief Justice of India. This is a definite step in the right direction and needs to be lauded.

However, the transparency is not complete. It has to be determined keeping a balance between the requirements of public interest, the right to privacy, accountability of the judiciary, and judicial independence. The judgement devotes a lot of space to describing the complexities and delicacies involved in dealing with this “principled conflict between various factors in favour of disclosure and those in favour of withholding of information”.

The judgement exemplifies it thus: “It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

The court has been candid in admitting that clear answers to the questions involved are not really possible. It says, “Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.”

What next?

Judgements like this which enhance transparency and openness come once in a while and raise expectations. The court admits this, albeit tangentially, when it says, “The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future.”

So, what should we expect?

First, to continue “forging new paths” by gradually opening up, learning from “the experiences of the past and the aspirations of the future”. This will also include making the process of appointment of judges more transparent.

Justice DY Chandrachud, in a separate but concurring opinion, says: “Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves.”

Second — and this is a big one — bringing political parties under the purview of the RTI Act. A petition on this is pending in the Supreme Court since May 19, 2015. The petition was filed because six national political parties were declared to be “public authorities” under the RTI Act by a full bench of the Central Information Commission. All six parties — the Congress, Bharatiya Janata Party, Nationalist Congress Party, Bahujan Samaj Party, Communist Party of India, and Communist Party of India (Marxist) — blatantly defied the Central Information Commission’s order.

On a complaint of non-compliance filed before the Central Information Commission, another full bench of the commission held several hearings. None of the political parties attended the hearings, even when the commission sent them show-cause notices. After repeated hearings and repeated notices, which were ignored by all six parties, the commission pronounced a decision on March 16, 2015, saying it “is bereft of the tools to get its orders complied with”.

The first hearing of the petition in the Supreme Court was on July 5, 2015. The date of the next hearing has still not been fixed. Now that the court has said that even the Chief Justice of India’s office is within the purview of the RTI Act, it is hoped the court will take up the petition for bringing political parties under the RTI Act soon and do the right thing.

It is necessary, meanwhile, to record, and appreciate, the exemplary determination and perseverance of Subhash Chandra Agarwal and his lawyer, Prashant Bhushan, for pursuing this issue so doggedly — and for so long.

**This article was originally published in Newslaundry

Our country’s systems will not be rid of their vulnerabilities until the Political system’s shortcomings are fixed first. There are institutions to enforce the law, but they are controlled politically as well – whether direct or indirect, nevertheless, Law and Order and the Criminal Justice System cannot function unless the Political system is brought under the purview of the law.
-Prof. Jagdeep Chhokar

Lok Manch – Corruption in Politics

June 3, 2013 turned out to be very similar to July 8, 2002. How and why?

On June 3, 2013, the central information commission (CIC) announced a decision that “held that AICC/INC, BJP, CPI(M), CPI, NCP and BSP are public authorities under section 2(h) of the RTI Act.” The immediate aftermath of the decision appeared ballistic. It seemed that a storm had hit the entire political establishment. Some commentators even went to the extent of saying that the decision had the potential to destabilise and destroy the entire political system. Others called it “adventurism”. All six political parties named in the decision, and some not included, were unanimous in (a) opposing the decision, (b) saying that it will not stand scrutiny of the courts (a well-known lawyer and spokesperson for one of the leading parties even said it will be “immediately struck down”), and (c) saying that the decision was un-implementable.

Some seemingly dispassionate observers commented that such unity among different political parties was unprecedented and “have never happened before”. They seemed to have forgotten what happened 11 year ago.

On July 8, 2002, an all-party meeting was held in New Delhi, attended by 21 political parties. The meeting unanimously decided that a decision of the supreme court announced on May 2, 2002 (in civil appeal no. 7178, Union of India v/s Association For Democratic Reforms & Another) which required candidates contesting elections to submit sworn affidavits disclosing criminal cases pending against them, their assets and liabilities, and their educational qualifications, will not be allowed to be implemented and, if necessary, the Representation of the People (RP) Act, 1951 will be amended in the then ongoing session of parliament. The RP Act was indeed amended but the amendment was struck down as “unconstitutional” and “null and void” by the supreme court on March 13, 2003 in writ petition (civil) No. 515 of 2002 (Association for Democratic Reforms v/s Union of India & Another), and the submission of affidavits became law and still holds.

The CIC’s decision does have the potential to be a game-changer for India’s political system. It is enigmatic that the longest written constitution in the world, of the largest democracy in the world, did not contain the word ‘political party’ in it when it was enacted. It appears only in Schedule 10, inserted in the constitution with effect from March 1, 1985, as a result of the 52nd Amendment. There are a few provisions scattered over a number of legislations that apply to political parties but they are all piecemeal and often not connected or correlated with one another. Since these are kind of diffused, political parties have not been subjected to any systematic scrutiny. The CIC decision is the first that makes political parties, at least the six national parties, subject to scrutiny and that too by citizens at large. It seems it is the prospect of public scrutiny that makes political parties apprehensive, even jittery.

Essence of the decision

The essence of the decision is that these six national parties are “public authorities” under the RTI Act, nothing more, nothing less. The “obligations of public authorities” are specified in Section 4 of the RTI Act. Section 4, which is commonly referred to as the ‘proactive disclosure’ clause, actually has two distinct purposes. One requires every public authority to “(a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act”, and the other requires the public authority “to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information”.

Section 6 of the RTI Act gives every citizen the right to ask for any information from any public authority. Section 7 says the public authority “shall, as expeditiously as possible, and in any case within 30 days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9”.

Rationale for the decision

The 54-page order of the CIC gives detailed reasons for arriving at the decision that the full bench of the CIC, consisting of the chief information commissioner and two information commissioners, arrived at. While the order has given many reasons, a few stand out.

The primary reason is being “substantially financed, directly or indirectly by funds provided by the appropriate government”. Based on information obtained from the director of estates, government of India, through RTI applications, the petitioners/complainants – Anil Bairwal of the Association for Democratic Reforms (ADR) and veteran RTI activist Subhash Chandra Aggarwal – proved to the satisfaction of CIC that the total current market value of the plots of land allotted to political parties was ‘2,556.02 crore even at a very conservative estimate.

In addition, the total amount spent by the government on political parties for both the national and regional TV networks during only the Lok Sabha 2009 elections was ‘10.75 crore. This information was based on data provided by Doordarshan, again under RTI applications, about time slots provided to political parties and the standard rates for those slots.

Similarly, the amount spent by the government through All India Radio providing free time slots to political parties during only the Lok Sabha 2009 elections, again obtained using RTI applications, was ‘28.56 lakh.

Section 13-A of the Income Tax Act says, “Any income of a political party which is chargeable under the head ‘income from house property’ or ‘income from other sources’ or ‘capital gains’ or any income by way of voluntary contributions received by a political party from any person shall not be included in the total income of the previous year of such political party.” In effect, political parties do not have to pay any income tax at all, whatever be their income.

ADR had got access to income tax returns of political parties after a two-and-a-half-year struggle culminating in a decision by CIC in 2008. Taking the figures of total income declared by the six national parties, and computing the tax applicable at prevailing rates, it was estimated that a total amount of ‘510.02 crore was due from these six parties over a three-year period, which was waived off. It was therefore money spent by the government on political parties though indirectly.

Another reason is the statutory status of political parties. While anyone is free to form an association of persons, a political party cannot come into existence until it is ‘registered’ by the election commission (EC) under Section 29-A of the RP Act. Therefore, political parties do have statutory status under a “law made by parliament”.

The third, and arguably the most important, reason is the constitutional power that political parties enjoy. Articles 102(2) and 191(2) of the constitution, read with Schedule 10, give political parties the power to unseat members of parliament and state assemblies respectively. This is a very serious power – to remove those persons from elected positions to which they have been elected by “We, the People”. In effect, this gives political parties the power to undo what the people have done.

Another reason is the role of political parties in government formation. The government is formed by the political party which is in majority in the Lok Sabha or in the state assembly, or one which can muster up such majority in coalition with other parties. So the government is formed by political parties. And if the functioning of the government is meant to be transparent, as the RTI Act stipulates, then it follows that the bodies that form the government should also be transparent. The decision quotes paragraph 3.1.2.1 of the law commission’s 170th report on “Reform of Electoral Laws (1999)”, as follows:

“On the parity of the above reasoning, it must be said that if democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the Political Parties which are integral to parliamentary democracy. It is the Political Parties that form the Government, man the Parliament and run the governance of the country. It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the Political Parties. A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside.”

Irrational or “motivated” apprehensions

Now to the “apprehensions”, their possible causes, and explanations.

The biggest canard that has been bandied about is that political parties already report to the EC, and the CIC decision will make them answerable to two bosses: that is, the CIC in addition to EC. Nothing could be further than the truth.

First, political parties do not “report” to the EC. The number of occasions that political parties have not agreed to or have turned down suggestions of the EC is far too high to list them. Why only the EC, political parties even refused to heed the advice of the vice president when he, in his ex-officio capacity as the chairman of Rajya Sabha, suggested three actions to make sittings of the upper house more productive. Parties flatly and unanimously refused to go along with his suggestions.

Second, the CIC’s decision makes political parties answerable to the citizens of the country and not to the CIC. The very first sentence of the RTI Act reads “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority…”.

Thr CIC does not file RTI applications seeking information; citizens do.

The reason for spreading this canard is baffling. Either those who are going around saying this have not read the RTI Act or they are deliberately spreading misinformation. I am writing this with a sense of responsibility as I have repeatedly heard this being said in TV discussions.

The second major apprehension seems to be that all kinds of irrelevant and unnecessary information will be asked for, making it impossible for political parties to function. This is amazing for two reasons. One, there are thousands of existing and accepted public authorities functioning in the country, and all of them have continued to function despite the RTI Act having come into force on October 12, 2005. The same apprehension was raised repeatedly before the RTI Act was passed but the experience of the last eight years has proved it to be completely baseless.

The second reason for this apprehension to be baseless is the provision in Section 7 of the Act for a public authority to “reject the request for any of the reasons specified in sections 8 and 9”. Section 8 lists as many as 10 reasons for which a request for information can be denied. What needs to be understood is that while a citizen has the right to ask a question not only under the RTI Act but also under Article 19(1)(a) of the constitution (the fundamental right to freedom of speech and expression), a public authority has an equal right to refuse to answer the question but for reasons that have to acceptable to the appropriate authority which, in the ultimate analysis, is the supreme court. The law however makes two very important provisions. One, “(I)nformation which cannot be denied to the parliament or a state legislature shall not be denied to any person”, and two, information has to be given “if public interest in disclosure outweighs the harm to the protected interests”.

The above also covers the apprehension that “internal” affairs of a political party cannot be disclosed. The relevant consideration is what internal affairs of a political party are. The contention of political parties seems to be that whatever they choose to call “internal affairs” are internal affairs. This is not the case after the CIC’s decision. A call will now need to be taken as to what the internal affairs are that need to be disclosed because “public interest in disclosure outweighs the harm to the protected interests”. And in case of a difference of opinion between the information-seeker and the political party from which the information has been sought, this call will be taken first by the CIC, then by the high court, and finally by the supreme court.

It seems political parties (a) just do not like to be questioned by citizens, and (b) don’t want to share reasons why they would not like to provide some information. This stand, by organisations that always, and loudly, claim to work for the people, would be mysterious if the disenchantment with political parties was not as widespread as it is.

The way ahead

The CIC decision is now a fait accompli. It cannot be wished away. The ball is in the court of the political parties. They can accept is gracefully or fight it. Fighting is possible in two ways. One is to challenge it in the high court. Notwithstanding a senior lawyer’s assertion that it will be “immediately struck down”, the decision is on firm legal footing. Those who have read all the 54 pages of the decision will notice that there are detailed citations from various high courts and the supreme court substantiating the stands taken by the CIC, in addition of course to various earlier decisions of the CIC which have not been challenged. One such decision of the CIC is from 2008 wherein the income tax returns of political parties were made accessible to citizens.

Even before the issue gets to be argued in court, one or more political parties will have to challenge it in court. There can be no prize for guessing what that action will do to the existing disenchantment with political parties. But still, if some political party or parties choose to go ahead, that challenge will be met in the courts.

The other way of fighting it might be to try to amend the RTI Act. The bureaucratic and political establishments have attempted to amend the RTI Act every three or four months ever since it came into force. The stated reasons for the proposed amendments have varied from making the law stronger, making it easier to implement, to preventing frivolous and vexatious requests for information. The apprehension of what may be called the RTI community has always been that under the garb of improving the Act, the real motive is to make it toothless and ineffective. Civil society and the media have so far succeeded in preventing any amendments. One expects similar opposition to any attempt at amendment with such obvious motive as to prevent its application to political parties.

In the unlikely event of an amendment going through, the option of challenging that amendment in the court remains open.

If, however, the intention is to improve democracy and governance in the country, the best course for political parties is to accept the decision gracefully. Optimists believe that there are people in political parties who are unhappy with the current state of affairs and would like things to change drastically for the better. While most such people belong to the rank and file, there is also speculation that some of the very top functionaries of some of the parties want things in their parties to change. Be that as it may, this order provides political parties an opportunity to make a start toward changing how they have come to work.

Following the observation of Louis D Brandeis, a justice of the US supreme court from 1916 to 1939, that “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman,” political parties will do well to let sunlight fall on their internal functioning so that any infections there can be removed

In February 2010, the Association for Democratic Reforms (ADR) filed an RTI application with the respective income tax departments to retrieve the IT returns of 20 MPs with exponential growth in assets between the previous two elections. Thus, started a four-year long battle to have the IT returns of MPs in public domain. On April 16, 2013, a bench of the central information commission (CIC) held a hearing on this issue and reserved the judgment. The respondents at this hearing were lawyers, chartered accountants and representatives of Uday Singh, Maneka Gandhi, Sachin Pilot, Dushyant Singh, Kumari Selja, Beni Prasad Verma, Ajit Singh, Lalu Prasad and TR Baalu along with the CPIOs to whom the RTI applications were sent. It is expected that a hearing would be held after the appointment of the chief information commissioner (for which a three-member selection committee has been constituted).

What needs to be examined is that the political class that has been pontificating about the problem of black money has time and again failed to incorporate the same ideals in the execution of duties as parliamentarians. Some singularly original arguments made by the respondents at the CIC hearing were that because every taxpayer serves a larger public interest by paying tax, to single out parliamentarians for disclosing their IT returns under the argument of public interest is only to feed some private curiosity of the appellants. The seeming earnestness by the political class towards combating black money apparently extends to everyone other than their own threshold.

Why do we need the IT returns of MPs in the public domain? To answer this simple question we only need to go back to the Supreme Court order of March 13, 2003, which made it mandatory for candidates contesting elections to disclose their criminal and financial antecedents by way of a sworn affidavit, where the court observed what was held in the PV Narasimha Rao vs State case of 1998:

“They are the repositories of public trust. They have public duties to perform. It is borne out by experience that by virtue of the office they hold there is a real potential for misuse. The public awareness of financial position of the candidate will go a long way in forming an opinion whether the candidate, after election to the office had amassed wealth either in his own name or in the name of family members, viz., spouse and dependent children. At the time when the candidate seeks re-election, the citizens/voters can have a comparative idea of the assets before and after the election so as to assess whether the high public office had possibly been used for self-aggrandizement. Incidentally, the disclosure will serve as a check against misuse of power for making quick money – a malady which nobody can deny has been pervading the political spectrum of our democratic nation….”

At the time of filing their nominations, it is mandatory for candidates to disclose their IT details in an affidavit, so the disinclination to declare their IT returns once in office seems inconsistent. To be fair, when the ADR requested the Rajya Sabha and Lok Sabha MPs in 2013 to suo motu disclose their IT details, 20 MPs and 8 MLAs obliged. If some section of the political class, albeit small in proportion, can recognise the importance of their office and the need to uphold the same ideals they preach, it is hard to understand why the remaining MPs cannot follow suit.

An ADR analysis found that the assets of 165 re-elected MPs increased on an average by ‘7.40 crore between 2009 and 2014. The assents of 21 of them had shown an increase of more than ’15 crore during the five-year term. This increase in assets could very well be completely innocuous, and if it is, then these MPs can reassure the citizens by simply putting their IT returns in the public domain.

In this matter, the umbrella issue of the parliamentarians’ reluctance to publicly disclose their financial interests comes to the fore. As of now, only the ‘Register of Members’ Interest’ of the Rajya Sabha MPs is in the public domain. There is no system in place for the filing of a similar register for Lok Sabha MPs. This oversight reflects an integral issue of monitoring the conflict of interest of legislators in the execution of their official duties. On August 24, 2011, ADR founder members Trilochan Sastry and Jagdeep Chhokar wrote to then speaker of Lok Sabha suggesting that provisions for filing the Register of Members’ Interest be incorporated for the lower house as well.

The ethics committee for the 15th Lok Sabha prepared a report on “Maintenance of Register of interests of Members of the Lok Sabha and declaration of interest in the House or a Committee thereof”. This report was first tabled in parliament on December 18, 2012. It stated that: “The aim of registration of interests is openness, which is so vital for the functioning of a parliamentary democracy. The Committee, therefore, feels that in order to avoid a conflict of interest, the provisions relating to registration of interests need to be incorporated in the Rules. Conflicts of interest may arise from financial interests as well as non-financial interests.”

Let us hope that the 16th Lok Sabha would take the necessary steps to set up the system of filing Register of Members’ Interest as recommended in the report.

The ADR analysed the asset declarations of union council of ministers submitted to the PMO office which is mandated in the Code of Conduct rules by the home ministry. While the move towards having these asset declarations in the public domain and filing them on a timely basis is a positive step towards transparency, the ADR report found that some of the declarations were not made in the letter and spirit of the rules. Many ministers did not give the value of the assets they declared or declared the purchase amount of the asset instead of the market value of the assets. The rules also mandate that the ministers declare their business interests along with their assets, which was missing from almost all declarations. If these asset declarations, with the aim of bringing in financial transparency, are to be taken seriously, a standard format mandating all the details to be filled should be instated.

The new government at the centre has infused the citizens with aspirations of change, growth and fresh perspective. The expectations from it are not high or unattainable. Simply put, what is expected is that the government live up to the promises it has made to the nation. One of the most integral aspects of a smooth functioning democracy is greater transparency and accountability of the MPs. The office they hold is of prime importance, bringing with it the duties and responsibilities of a public citizen, a position that holds the trust, faith and aspirations of all the citizens of the country. One of the first steps our elected representatives can take is to disclose their IT returns in the public domain. To bring transparency and accountability back in the nation, let’s start with our legislators.

Source: Governance Now