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.

… contd.

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