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Party fixing | The Indian Express

If the army feels it requires continuation of the AFSPA to discharge its responsibilities, no other agency is qualified to credibly challenge that view. 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 CICs 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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