New Delhi, Aug 11: A government move to exempt political parties from the purview of the Right to Information (RTI) Act - which would have subjected their working and finances to public scrutiny - is likely to face stiff legal challenges.
Eminent counsel Prashant Bhushan said any amendment would breach article 19(1)(a) of the constitution and would be junked in the same way the Supreme Court in 2003 nullified an amendment to the Representation of People's Act protecting politicians contesting elections from declaring their assets and liabilities.
"It will be totally wrong and unconstitutional. It violates 19(1)(a) guaranteeing freedom of speech and expression and expression has been held to include the right to know," Bhushan said.
Cutting across the spectrum, the entire political class is resisting the June 3 Central Information Commission (CIC) ruling that the six national level political parties - Congress, Bharatiya Janata Party (BJP), Communist Party of India-Marxist (CPI-M), Communist Party of India (CPI), Nationalist Congress Party (NCP) and Bahujan Samaj Party (BSP)- were public authorities as they benefitted from substantial indirect financing by the central government. They thus perform a public duty.
" we hold that INC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the central government under section 2(h)(ii) of the RTI Act", CIC had ruled.
In the face of the near unanimous chorus of the political parties, the government decided Aug 2 to amend the act to nullify the CIC ruling that said: "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)."
Making it clear that they could not escape from the public gaze, the CIC said: "Their uniqueness lies in the fact that in spite of being non-governmental, they come to wield or directly or indirectly influence exercise of governmental power. It would be odd to argue that transparency is good for all state organs but not so good for political parties, which, in reality, control all the vital organs of the state."
Not just Bhushan but another eminent lawyer Mahesh Jethmalani, a votary of transparency, said: "Strictly speaking, they (political parties) are not the state but in an age of transparency they should come under RTI Act.
"Presumption of innocence is displaced" after an individual is convicted by a trial court. Thus, an elected representative, upon his conviction must get unseated, Jethmalani said, throwing his weight behind the Supreme Court ruling based on the RTI Act that an elected representative stands disqualified from the parliament or state legislature on conviction.
In its July 10 verdict, the apex court had struck down a provision in the electoral law that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts. It also made it clear that MPs, MLAs and MLCs would stand disqualified on the date of conviction.
"I am a supporter of the Supreme Court verdict that when a member of parliament is convicted, pending his appeal (before a higher court), he should vacate his seat. After conviction, the presumption of innocence is displaced," Jethmalani told IANS.
There is a flip side.
Agreeing that political parties should not be exempted from the RTI Act, senior counsel and former Delhi High Court judge Jaspal Singh said: "As far as two judgments are concerned, there are a few grey areas some more thought needs to be given to them."
Expressing his reservations over the apex court ruling that an individual in custody can't contest elections, Jaspal Singh, a well-known criminal lawyer, told IANS: "A man is arrested and he is debarred (from contesting elections). After five days, he gets bail. What happens to his electoral rights?"
This is an issue (people in custody being debarred from contesting election) on which even Prashant Bhushan has certain reservation. He described it as a "serious" ruling that needed to be re-looked at.
"I feel this jail judgment is fraught with serious consequences," said a senior counsel, wondering what would happen if an individual was arrested just before election and was released without anything being held against him after the nomination process is over.
In such a situation, without any judicial process or a judge deciding the issue, police become the sole arbiter, the counsel said, pointing to the dangerous consequences of such a situation.
On the issue of amending the RTI Act to take out political parties from its ambit and unseating convicted legislators, the political class has no takers in judicial corridors.