"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, August 19, 2013

How Transparent Political Parties Can Afford to Be!

The debate has been on for sometime now and the government with the blessings of all political parties have moved the Right to Information (Amendment) Bill 2013. Ironically, it is the same parties who came together to hide behind the veil of secrecy form public eye who otherwise in second breath declare that 'we came clean at people's court' and 'we have people's mandate, which is above all'. After all, who doesn't know, people is a convenient abstraction anyone can use without answerability but for once in five years and there also formulas work than holding one responsible for deeds and misdeeds. In any case it is but logical to expect that the amendment may be challenged for its constitutional validity.

There are three major reasons proffered for keeping political parties out of the gaze of public in the Bill;
  • political parties are not public authorities, which the Act intends to cover, 
  • transparency in the functioning of political parties are already taken care by the existing laws like the Representation of the People Act, 1951 and the Income Tax Act, 1961 
  • opening up political parties to RTI will hamper the smooth internal working and political rivals will adversely affect the functioning of the parties 
The third reason raises the question how transparent political parties can afford to. In the age of social communication, information highways and public debates of public issues there seems to be a lot political parties wants to keep to themselves. 

I am tempted to refer a news item from a German online newsletter (accessible here). Story of a political party that claimed to deviate from its traditional counterparts in transparency norm. From press receiving only official press releases and interviews, this party streamed committee meetings via internet and no screening between what happened and what reached the public ears. Soon they realised "..., with our calls for 'Transparency! Transparency!' we in the Pirate Party have created expectations that are difficult for us to meet," going back to the established party ways it is now felt that the character of the party is lost. This story but has to be read in the context of Germany where transparency norms are ingrained in the law and public disclosure of party finances to the legislature a mandate. Therefore the bar of transparency they were trying to push was already set much high. 

This has to be juxtaposed with the Government of India's stand in Ashok Chavan case (Paid News Case) pending in Supreme Court of India. It has shamelessly declared there that the EC has no jurisdiction to look into the accuracy of the statement of election expenditure filed but need only to verify the timely filing. Moreover, the Income Tax Act requirement is not a foolproof method to regulate party finances nor are the provisions of the Representation of the People Act, 1951. In summary, the norms of transparency and accountability in India is far below the desired as it stands.

Now the remaining question is, can political parties be considered as public authorities? The subsidies, freebees and benefits enjoyed by the political parties which is coughed up by the tax payer makes them definitely accountable to them. The role played by them in the political process makes them an integral part of the public institution though it may not conform to the structural construct of a public authority, rather will suit a free association of people.

It goes without question the action of political parties needs to be transparent. The disclosure norms to begin with should be on the financial side. The decision making side is bit too tricky and needs further thought and evaluation to make it under information dispensation norms. 

There still is an issue whether this amendment stand the test of judicial scrutiny if and when challenged.

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