The Rajya Sabha election has once again brought to the fore what political unanimity means in India. I first encountered it in early 2001, when the Union of India filed an appeal in the Supreme Court (SC) against a decision of the Delhi High Court requiring candidates contesting elections to disclose pending criminal cases. Political unanimity was on display when several parties intervened in the case in support of the government. But the SC upheld the HC judgment.
Thereafter, 22 political parties joined hands against the SC judgment. The Representation of the People Act (RP Act) was amended unanimously in Parliament to render the SC judgment ineffective. The amendment of the Act was declared “unconstitutional” and “null and void” by the SC and finally, candidates had to submit affidavits disclosing pending criminal cases. This was in 2003.
In 2007, an application under the Right to Information Act was filed to the Income Tax department, requesting copies of Income Tax Returns (ITRs) of political parties. When the request was denied, first appeals under the RTI Act were filed. When these were rejected, a second appeal was filed before the Central Information Commission (CIC). Parties, without exception, argued that their ITRs must not be made public. The CIC, however, decided otherwise.
In 2011, a complaint was filed before the CIC against political parties refusing to accept RTI applications; the parties claimed they were not “public authorities” under the RTI Act. Data was presented to show that six national political parties (BJP, Congress, CPI, CPM, NCP, and BSP) fulfilled the conditions stipulated in Section 2(h) of the RTI Act which defines a “public authority”. However, all six maintained that though they fulfil the conditions, the Act does not apply to them. A full bench of the CIC, in a unanimous decision on June 3, 2013, declared them to be “public authorities” under the RTI Act, and “directed” them to respond to RTI applications within six weeks. None of them, however, complied with the CIC decision. Notices issued by the CIC were ignored, which then said it was unable “to get its orders complied with” though there had been “wilful noncompliance” of its “final and binding” decision. The case is in the SC.
In March 28, 2014, a division bench of the Delhi HC held the BJP and the Congress guilty of violating the Foreign Contributions Regulation Act (FCRA), and “directed” the Government of India to take action under FCRA “within six months”. Both the parties filed appeals in the SC against the HC judgment. The government amended the FCRA in the 2016 Budget with retrospective effect. However, during hearings in the SC, it was discovered the FCRA amended with retrospective effect was the one that came into force in 2010, whereas the HC judgment had clearly mentioned the conviction was for donations received in 2009 and earlier, under FCRA 1976, which was then in force. The lawyers for the BJP and the Congress withdrew their appeals. The conviction of the BJP and the Congress under FCRA stands, and has been implicitly endorsed by the Supreme Court.
Now the upcoming Rajya Sabha election. Both the BJP and the Congress have reacted against the provision of “None Of The Above” (NOTA) option. The Congress filed a petition in the SC and the BJP went to the Election Commission to get NOTA withdrawn. NOTA was ordered to be provided on the EVMs or the ballot paper by the Supreme Court in September 2013, and has been a part of all elections since then. Many wonder why the BJP and the Congress have now turned against NOTA. The reason is contained in the Supreme Court judgment, which says if more and more people use NOTA, “the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”