Published in the Indian Express
The tussle around the proposed RTI amendments to nullify the CIC order bringing 6 national political parties within the ambit of the RTI Act is notable for many reasons: first, the amendments were sent to the Standing Committee for deliberation despite near political unanimity and thus an easy majority vote in the Parliament. This is significant since postponing amendments until at least the Winter session means a de-facto acceptance of the CIC order in the interim during which time information activists will ask questions. This is risky terrain since the CIC is a wild card: it could hold these complaints in abeyance given that the matter is under Parliamentary deliberation or it could pass another adverse order bringing more negative publicity to these 6 political parties, and the political class as a whole. The Standing Committee too has been unusually consultative – traveling to multiple states for public consultation as opposed to the usual style of selective invitations to depose in a Parliament room. The decision is thus an outcome of considerable political will and shows the political class to be less insular than its depiction of late.
The CIC order though not divorced from current political context – overwhelmingly anti-political – appears to have been in good faith. The CIC is tasked to uphold the RTI Act, which is unequivocal that all institutions/authorities which get substantial (not majority) public funding are obligated to transparency provisions of the RTI Act. Therefore, the CIC could not have held otherwise going by bare facts alone. However political parties occupy a unique position – operating within both formal and informal political space – and cannot be treated at par with a state instrumentality. Whether or not the CIC recognized this distinction is immaterial – the CIC does not have the amplitude of the Supreme Court to interpret or read down legal provisions to have accommodated this distinction. Unfortunately the response to the CIC order too has only been political with the debate split into binaries of advocating for or against the order based on tactical considerations instead of principles. Referring the amendments to the Standing Committee has thus provided an opportunity for nuanced deliberation on an issue of pivotal importance to electoral democracy.
The largely tactical response of the civil society is understandable. There is apprehension amongst transparency activists that “nuance” will imply amendments to the RTI Act and that amendments, if conceded, will open the floodgates for other dilutions such as exclusion of file notings which have been repeatedly mooted in the past. However it is significant that the amendments proposed this time were limited to nullifying the CIC order and did not attempt to “slip in” any other amendments. This may be because the political class is cognizant that the overt anti-politician mood is undermining their ability to resist increasing assertion (and sometimes overreach) by other institutions – and that it is important to shore up popular support through sensitivity to public perception. The apprehension thus of wholesale dilution of the RTI Act is perhaps overstated. The second reason for civil society’s stance is that even while political parties are agents of people’s will, they have been historically recalcitrant towards demands for their own transparency and accountability. Electoral reforms have not progressed beyond paper and the few in place today are seen as having been thrust perforce through judicial and election commission’s interventions. Third, part of the reason why political parties are being held to the same standard of transparency as state instrumentalities is that it is difficult to disaggregate power exercised by political parties in the informal economy from state political power since the latter is often used to expand and cement the former. Finally political parties are perceived as having squandered legitimacy through unchecked abuse of power and overt opportunism. The CIC order is thus seen as a way to checkmate the political class in an overtly anti-political environment.
However while this intransigence may make tactical sense in the short-term, it is also blurring democratic principles of accountability and is creating a slippery slope which may be self-defeating in the long run. There is too lack of intellectual clarity in this debate – it is unclear if the proponents want transparency or electoral reform. If it is the former, the RTI Act may not measurably advance transparency of political parties. The RTI Act can only enforce disclosure of information which exists as a record, and records need be maintained only as required by law. However the existing legislative framework for operation of political parties is loose and does not mandate documentation of any significant processes. Bringing political parties under the RTI Act will force disclosure of their donor list, but again as per law political parties are only required to document donor information for contributions above Rs 20,000. As many people have observed, ~75% of contributions (100% for BSP) to political parties are below this threshold. This information is already available under the RTI Act which allows disclosure of third party information held by a public authority (EC and IT Dept in this case) in public interest. It is true though that bringing political parties under RTI will create space to demand documentation of predominantly transactional processes such as financial dealings. Some have also argued that bringing political parties under the RTI Act will force formalization of internal processes and thus create space for democratic reform. This argument is fallacious since fear of disclosure can equally incentivize ad-hocism. Moreover, it is not clear if lack of transparency of process is the primary problem in political parties. The fact that election candidates are selected by a few individuals in most political parties is not a secret and bringing political parties under the RTI Act will not change this unless mandated by law. In addition, this argument overlooks the myriad and complex variables which lead to the personalized nature of power in political parties to assume that public disclosure can trigger internal accountability.
These are other questions which need clarification. For instance on what grounds does accountability which arises purely from financial subsidies go beyond flow of said monies. In the case of political parties it may be reasonably argued that the accountability of political parties stems more from the enormous power wielded by them than the public funding they receive. However the contours of this accountability must first be defined before fixing the manner of its operationalization. The danger of strategic political wrangling is that it excludes everyone outside of the existing (official and unofficial) power structure whereas anyone can engage with a public debate based on principles. Political parties have shown that they are not completely tone-deaf to public opinion: the CIC order was not overridden by legislative fiat; the Representation of People’s Act was not amended to allow convicted politicians to remain in Parliament. It is apparent that the center of gravity in politics has perceptibly shifted. It is to be hoped that the RTI civil society will use this opportunity to debate this issue based on principles instead of only taking a tactical short-term view of the matter.