Party fixing.
The clamour for accountability could
render us blind to other important issues
As India searches for a new accountability regime,
it faces a delicate question. Will new institutional and legal innovations lead
to greater accountability, or to more regulatory chaos? The decision of the
Central Information Commission (CIC) to bring political parties under the ambit
of the RTI Act raises this question. It is a measure of how confused our
conceptual discourse has become that both defenders and opponents of the
decision seem to be speaking in incommensurable vocabularies. It might be
tempting to dismiss the political parties' resistance to being brought under
the RTI as self-serving. But it would be foolish to ignore the thought that
their objections may have half a point.
The biggest confusion in our discussion comes from
this fact: we are used to thinking of the distinction between a public authority
and a private one in spatial and organisational terms. On this view, a private
entity is a mini sovereign in its own domain that can keep out the state. One
of the biggest developments in law has been that such spatial metaphors no
longer apply. There are no public or private entities; only public or private
functions. As the Supreme Court declared in the famous Binny case, the scope of
any order is determined by "the nature of the duty to be enforced, rather
than the identity of the authority against whom it is sought". This has
the implication that a private entity can discharge a public function. It also
has the reverse implication: merely because an entity is public does not mean a
public law remedy should apply to it.
The CIC has used this functional, rather than
organisational, logic. But it has nevertheless gone beyond its remit in three
respects. First, no one is arguing that political parties are not accountable.
The question is: accountable to whom? Under the law, as it stands currently,
they are accountable to the income tax authorities, the Election Commission
and, in their political performance, the people. There is already a mechanism
for accountability available. We may not like it; we may think it operates
imperfectly. But this remedy is available. Essentially, what the CIC has done
now is that it has made political parties accountable to the information
commission under the garb of making them accountable to people. Following the
functional logic, even if political parties perform public functions, it does
not automatically follow that the specific remedy is that they should be
answerable to the CIC. We may want to change the law; but it is lawmakers who
should do it.
The second problem is that our approach to
regulation is not, strictly speaking, normative. It is instrumental. It is a
function of our gut instincts of trust and distrust. Since we distrust
political parties at the moment, we assume they ought to be regulated more
tightly. Consistency in law is less important than achieving an immediate
objective. The CIC's order in the case of political parties is an example of
this approach. Many grounds have been adduced for thinking of political parties
as akin to public authorities. First, they receive partial funding from
government in the form of tax exemptions, or subsidised rents, or land
allocation. But this ground alone is dubious. It is ironic that the very same
CIC had, in exempting the Rajiv Gandhi Foundation (RGF) from the RTI Act,
argued that the foundation received, on average, less than 4 per cent funding
from the government, and hence should be exempt. In other words, mere
government funding was not enough; it had to be substantial in proportion to
the overall income of the organisation. In the very same case, it had argued
that "No submissions have been made about the current rental value of the
property in question by the parties... Even if market rental value is
attributed to the property in question, in our opinion, it would not render RGF
into a public authority." Why should this consideration not have been
given more weight?
Again, in the same case, the CIC had sensibly
applied additional criteria. First, the entity in question needed to be owned
or controlled by government. It needed to be demonstrated that the government
exercised pervasive control over an organisation through participation in its
governance structure. It was held that the RGF did not meet this test. It was
run by its own board of trustees. This very sensible test, which was,
incidentally, also used by the courts to exempt the BCCI from qualifying as a
public authority, is more or less ignored in this order. The point is not to
prejudge whether the RGF should be under RTI or whether the courts were wrong
not to declare the BCCI a public authority. The point is that institutions,
rather than principles, drive the conclusion. One rather suspects that if the
BCCI case were litigated today, the courts might arrive at a different
conclusion, not based on first principles, but on intuitions about its
functioning. The CIC adduces a third argument that is even more ridiculous. It
says that "in spirit these political parties can be said to have been
constituted by their registration by the election commission of India, a fact
akin to establishment or constitution of a body or an institution by an
appropriate government." This use of a ghostly spirit to extend sovereign
power is dangerous. Even a marriage is valid only when recognised by a public
authority; it does not mean public authority institutes the marriage.
The third problem is the wide scope of the order.
There is a case for disclosing funding sources. But the order is very wide. I
may have views on how political parties should be run; most of them would
benefit by being more democratic. But it jeopardises freedom of association if
we think all internal decisions of parties should be subject to some form of
legal or public scrutiny. The order may pave the way for far-reaching
interference in the internal affairs of parties.
The commissioners profusely quote Laski on the
public functions of political parties. But they forget that Laski was also a
pluralist. He was deeply concerned that the sovereign power of the state should
not encroach on the workings of all kinds of intermediate associations. Under
the guise of transparency, we should not unwittingly empower the state and its
functionaries to dictate organisational forms. The clamour for accountability
can render us blind to other important issues. But there is also a lesson for
political parties. In India, no argument is now being conducted on the terrain
of principle or law; it is being conducted on the nebulous terrain of trust or
distrust. By acting in bad faith, the political parties have paved the way for
the small-minded logic of bureaucratic accountability to displace larger
political accountability.
The writer is president, Centre for Policy
Research, Delhi, and a contributing editor for 'The Indian Express'
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