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  • Hardik Kuldeep & Nishtha Chopra

Regulating Political Consultancies: Toward Informed Political Choices

Political consultancies like I-PAC in India, and Cambridge Analytica in the United States, have started playing a crucial role in how political parties formulate their manifestos and strategies, and how a certain candidate is ‘branded. The use of data analytics and psychographic and demographic profiling has come to light when it comes to the functioning of such political consultancies. Non-regulation of such consultancies has resulted in erosion of the democratic process of Indian elections because of apprehensions relating to transparency, accountability and the informed choice of the voters. Lack of an expenditure cap on how much political parties spend on campaign and political consultants has increased the role of money in elections, as only the rich and wealthy politicians can afford them. Thus, through this article the authors have tried to establish the need for regulating these consultancies. An analysis of similar regulations in other legal jurisdictions has been done, leading to suggestions more suited to the Indian context.


Introduction

The role of political consultancies in the Indian political landscape became visible in the 2014 elections where Citizens for Accountable Governance (now, I-PAC) worked with the Bhartiya Janta Party in helping them to win the elections. Prashant Kishore became the face of political consultancy in India, but hardly did anyone predict that these corporate entities will become one of the major factors in changing the public opinion of a candidate. A political consultant’s primary goal is to make voters aware of their candidate’s platforms and help them present themselves in the best way possible.


In spite of the role these entities have in swaying the public opinion in favour of or even against a particular political party or candidate, they remain grossly under-regulated in the Indian regime. There is a lack of accountability and transparency when it comes to the money political parties spend and the kind of data collection and its usage these consultancies engage in. Through this article, we have tried to formulate and advise a regulatory framework to increase transparency and lessen the erosion of democratic element of elections which is happening at the behest of the political parties and such firms. Accordingly, we have looked at how other political regimes and countries regulate the working of political consultancies to ensure transparency and accountability in the election process.


Need for Regulation

The need for regulation of political consultancies essentially starts from the kind of role these consultancies have started to play in swaying the public political opinion. There is no doubt about the fact that the role of social media in Indian elections has increased manifold. However, it is not the only determinant factor in this regard. Thus, political consultancies in India have to work in majorly two areas, one is the electronic media image or online ‘branding’ of the political party or the candidate, and the other is improving image ‘on the ground’. In order to ‘brand’ the candidate in a certain way, consultants rely on data collection and analytics.


Because of the immense role social media has started to play in election campaigning, it becomes important for political leaders to maintain a consistent social media image. In the 2014 elections, because of the use of social media by the parties targeted at the younger audience, the percentage of youngsters that turned up to vote, which used to be lower than the average turnout percentage, increased in 2014. In the 2017 elections in Punjab, the public perception initially was highly in favour of the Aam Aadmi Party. Accordingly, I-PAC transformed the perception of Amarinder Singh from an ‘elitist and lazy maharaja’ to ‘Captain’ Amarinder Singh so as to brand him as someone with an army background. This transformation was actively done by announcing events and slogans which included the ‘captain’ tag, which played a substantial role in his subsequent victory in the elections.


In addition to the development of social media image, political consultancies work on the ground. One of the ways this is done is by developing a network of workers, which was done by I-PAC in Andhra Pradesh elections while working for SG Congress, where a network of 50,250 booth level workers with one convenor and ten workers, called Samara Shankaravnam was developed at each booth in the state. They establish authority over the party cadre by monitoring, commanding and even maintaining progress reports of the candidates. Another way of working on the ground is by profiling the villages where these consultancies identify influential people of an area and even label households on the basis of their political opinions and caste.


Political consultancies like Cambridge Analytica have been known to use data analytics, demographic information and even psychographic profiling to coerce and deliberately limit the choices of the voters. Such psychological techniques of deception, lead to erosion of the democratic framework and might even effect a voter’s sense of fairness and integrity of electoral processes. Therefore, in order to term such tactics inducing undue influence, as ethical and democratically non-problematic, it is important to formulate regulations and mechanisms which ensure transparency and keep the voters informed about the ways in which their activities can be used to influence their decision.


Judiciary, has from time to time considered transparency as one of the most important aspects of the electoral process. In the same context, it has also regarded informed choice as a crucial component of the essence of democracy, which finds articulation in Article 326 of the constitution of India. In Public Interest Foundation v. Union of India, the Court stated that if a voter’s right to informed choice and proper information is scuttled, it may lead to the destruction of democracy.


Suggestions

In order to increase transparency in the electoral process with regards to the political consultancies, we suggest a two-pronged approach. The first one is the setting up of a Transparency Register for these consultancies in order to ensure disclosure. The second one being, auditing and an expenditure cap on political parties by the Election Commission of India with regard to political consultancies.


The Transparency Register

A transparency register or similar mechanism to regulate and audit political consultancies are present in various foreign states. It holds information regarding the firm and its employers as they start and stop providing their services. It is required to be updated on regular intervals and provides various other relevant information to the public, increasing accessibility and accountability in election campaigning.


The Fair Political Practices Commission (California) is a non-partisan commission established to oversee the administration of the Political Reforms Act. This act and the commission were set up after the Watergate scandal, to keep in check potential corruptible influences. The commission today shines light on violations of campaign and governmental ethics. This Commission, through their Transparency Portal, collects relevant information through forms on all political consultancies and lobbying firms to increase transparency and public accessibility to information through “smart disclosure”. This commission also provides complaint filings by the stakeholders, aiding the commission in finding and auditing the violators of the act.


San Francisco’s “Campaign and Governmental Conduct Code” under Chapter 5 provides Regulation of Campaign Consultants. It ensures transparency and credibility of elections in face of a highly competitive environment where political consultants are frequently employed. It does so by imposing registration and disclosure requirements helping the public make informed decisions. This requires frequent updates, and permissions or notification before taking up new clients or closing the firm respectively, while implementing penalties to ensure enforcement.


In the Indian context, we propose the register to be maintained under the Election Commission of India. A consultant under the law must be any person or entity, for a certain consideration, planning or conducting a political campaign, through hiring of staff, gathering funding for the campaign, spending campaigning funds on goods or service providers. The definition should also include a person affiliated with the political party under its ambit as this will prevent the political parties from subsuming consultancies under their party, as and when required, to bypass the regulations.


Registration of consultancies, with the Election Commission, must take place before they are able to provide services. Other information to be provided includes name, address and contact number of all the clients or employers, previous and present. Amount taken for the service provided and expenditure incurred on the behest of the client, are to be provided to the commission on a regular quarterly basis. An authorization statement before being able to work with a new client and a termination statement after which no consideration can be taken by the consultancy from the client, and no consultancy can be provided either, should be mandated


The commission must constitute a division of enforcers, with a proactive complaint mechanism. The government, media personnels, citizens and other government organisations must be able to file a complaint against defaulters. There must also be a system to penalise the offenders. The San Francisco Code provides for a fine for late registration, a fine of up to three times the amount not properly reported. The commission may cancel the registration for up to 1 year in case the consultancy provides services without informing the commission and if done so knowingly, the consultancy shall be guilty of a misdemeanour.


Expenditure and the Need to Keep it in Check

As stated above, a disclosure of expenditure from the side of the consultancy is necessary. Similarly, political parties are required to file a Statement of Expenditure mandated by Common Cause v. Union of India and Others, which makes the money spent by the political parties easily traceable. However, the way it exists now is problematic as a political party can pay a consultancy firm which can in turn hire vendors and service providers without any obligation to be transparent. Therefore, there must be a separate category of money spent on political consultancy by the political parties, in the Statement of Expenditure, in order to ensure a transparent audit. A cap should also be implemented on the amount which can be spent on or through political consultancies. Under the present rules only the candidate is bound by an expenditure ceiling and not the party. As held and bolstered in Kanwar Lal Gupta v. Amar Nath Chawla and others, if there is no ceiling with regards to the amount used in political campaigning it produces “anti-democratic” effects, as the party backed by wealthy affluent supporters will secure greater representation leading to some voters being denied equal voice. This is especially true in the context of political consultancies as they are only accessible to wealthy politicians and specialise in persuasive political tactics, which increases the role of money in elections and subsequent victory of such political parties.


Conclusion

The role political consultancies have started to play in casting an influence on the political opinion of the voters is immense. A careful analysis has necessitated the formulation of adequate regulations and disclosure mechanisms for these consultancies. The judicial opinion has always considered transparency and informed choices of the voters as essentials of democracy. However, this won’t be possible if such consultancies are allowed to function without any regulations in place, especially when they engage in activities like profiling and negative branding. India can take lessons from other countries who have regulated these consultancies, in an attempt to ensure a transparent and accountable democracy.

 

This article has been authored by Hardik Kuldeep and Nishtha Chopra, students at the Dr. Ram Manohar Lohiya National Law University, Lucknow. This blog is part of the RSRR’s Rolling Blog Series.

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