Dear Friends,
1. Political parties are entities with certain natural attributes, and they would not be able to change or redefine those inherent natural attributes, for example, there is no way they can redefine themselves as a military/security or an intelligence organization.
2. Political parties are EITHER Private Authorities OR Public Authorities, I am not aware if there is any middle path available to them !!
3. Presently - Given the said CIC decision:
If they are now able to establish themselves as Private Authorities / Entities - in a court of law, then RTI Act in its present legislated form does not apply to them, and the matter rests there for the moment.
Else, they continue to remain established as Public Authorities, and as such, they happen to come under the ambit of the RTI Act.
4. Now, if by virtue of their access to legislators they amend the RTI Act,
Whereby, they take themselves outside the ambit of the RTI Act,
WHEREAS, other Public Authorities continue to remain within the ambit of the RTI Act,
Then the question is, would they not be enacting a law which violates Article 14 of the Constitution of India titled "Equality Before Law", and lays down that "The State shall not deny to any person equality before the law or the EQUAL PROTECTION OF THE LAWS within the territory of India." ?
5. What does "Equal Protection of Law" mean in the present context?
If Political Parties need to be protected because their functioning may get affected by virtue of coming under the RTI Act, then similarly other Public Authorities too need to be protected because their functioning too gets affected in some way or the other ! Don't believe that .....
Please refer to the preamble of the RTI Act, which lays down as follows:
Quote:
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information -
Unquote.
Thus, if the functioning of the Political Parties is affected, then so is the functioning of other Public Authorities, at-least that is what the PREAMBLE of the RTI Act seems to be very very clearly suggesting !
6. Therefore, It appears that, the options before the Political Parties are:
> Either, to establish themselves as security or intelligence organizations;
> or, to establish themselves as Private Entities.
> or, to take themselves along with ALL THE OTHER PUBLIC AUTHORITIES outside the ambit of the RTI Act (i.e. equal protection of law).
7. It is important to note here, that if Political Parties as Public Authorities take themselves out of the ambit of the RTI Act, whereas leaving other Public Authorities to remain within the ambit of the RTI Act,
Then the RTI Act, in effect would be contravening Article 14 of the Constitution by way of a legislative enactment, which by a reasonable inference would mean an indirect amendment of the basic structure of the Constitution.
hmmm ..... can Parliament do that ? please read further .....
8. A 13 Judge Supreme Court Bench headed by Chief Justice Sikri in the matter of His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v.
State of Kerala and Anr. (case citation: AIR 1973 SC 1461), has laid down that ALL LAWS INCLUDING CONSTITUTIONAL AMENDMENTS ARE SUBJECT TO JUDICIAL REVIEW and laws that TRANSGRESS THE BASIC STRUCTURE of CONSTITUTION, are likely to be struck down by the Supreme Court.
Therefore, in essence, Parliament's power to amend the Constitution (either directly by invoking Art. 368 or INDIRECTLY by enacting or amending an Act), is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.
(Other important references - Minerva Mills' case; S. P. Sampath Kumar's case and L. Chandra Kumar's case)
9. Hence, it would be interesting to see how Political parties (with the help from their lawyers/advisors) by virtue of their access to Legislators & Executives, have reasoned and planned to help themselves to wriggle their way out of the ambit of the RTI Act without contravening the basic structure of the Constitution,
LEST they risk inviting a tug of war between the Legislative & the Judicial Branch of the Government !
Regards,
Sunil.
