The 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 such amendment would breach Article 19(1)(a) of the constitution and would be junked in the same way that the Supreme Court had, 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 Article 19(1)(a) which guarantees freedom of speech and expression. And expression has been held to include the right to know," Prashant Bhushan told IANS.
Thus, Bhushan said, "Just as the law which was made by parliament on not providing information about the assets and liabilities of candidates contesting election was held unconstitutional by the Supreme Court, the same way, amending the RTI Act will also be constitutional."
Cutting across the spectrum, the entire political class is resisting the June 3 Central Information Commission (CIC) ruling that the six national political parties -- the Congress, the BJP, the CPI-M, the CPI, the Nationalist Congress Party and the Bahujan Samaj Party -- were public authorities as they benefitted from substantial indirect financing by the central government, and 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 on August 2 decided 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 the political parties could not escape from the public gaze, the CIC had 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."
Even eminent lawyer Mahesh Jethmalani, crusader against corruption and votary of transparency, said: "Strictly speaking, they (political parties) are not the state, but in an age of transparency, they should come under the 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 had 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.
Expressing his reservations over the apex court ruling that an individual in custody can't contest elections, Jaspal Singh, a well-known criminal lawyer and former Delhi High Court judge, 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?"
Even Prashant Bhushan has reservations about people in custody being debarred from contesting elections. He described it as a "serious" ruling that needed to be re-looked.
"I personally feel that this jail judgment is fraught with serious consequences," a senior counsel who wanted to remain anonymous said, wondering what would happen if an individual were 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, the police become the sole arbiter, the counsel said, pointing to the dangerous consequences of such a situation.
The move to amend the RTI Act to take out political parties from its ambit finds little support in the judicial corridor. There is also general agreement, within those in the legal field, that legislators convicted of crime must be unseated.
However, on jailbirds being debarred from contesting elections, there are many who practice law who feel that there is need for a re-look, as it could have serious repercussions on the electoral system, and thus, democracy.
(Pramod Kumar can be contacted at saneel2010@gmail.com)
