I would like to begin this post by sharing my thoughts on transparency. In simple terms, transparency is the revelation of what otherwise might have been concealed. It enhances trust in the people and institutions on which our futures depend. Transparency has various dimensions. It is a vital via media for achieving a vibrant democracy or say, an essential element of nation building. For instance, the South African Truth and Reconciliation Commission, set up under an Act of Parliament of 1995, was a national transparency exercise aimed at healing the wounds of an exceptionally divided society. The aims were multifold like documenting human rights violations, granting reparations to victims, rehabilitation etc. This national exercise in catharsis brought a humane end to a period of institutionalised repression.
Transparency is, in fact, the antithesis of secrecy. In other words, if “secrecy” means deliberate concealment of one’s actions, “transparency” is deliberate revelation of them. Transparency strengthens participatory democracy and citizen centric governance. It must, however, be noted that institutional ‘transparency and privacy’ go hand in hand. Everything cannot be and more importantly, need not be revealed. The success of public policy lies in balancing the two seemingly contradictory demands.
Trans-Pacific Partnership Agreement
The TPP is a Free Trade Agreement which the US is negotiating with various nations. We had earlier reported that the negotiations over the proposed Trans-Pacific Partnership Agreement are “shrouded” in secrecy. IP Watch filed a petition with Federal District Court at Manhattan seeking ‘basic information’ on the USTR’s negotiations over the proposed TPP especially on IP related aspects. Ever since a request had been filed with USTR to this effect, USTR was dragging its feet. The instant litigation followed USTR’s denial of IP-Watch’s request. It has now taken cover under “national security” clause viz., the information cannot be revealed on the ground of national security. USTR has argued that disclosure of such information to the public would harm foreign relations, even though all such material has already been disclosed to the other countries participating in the negotiations. See Infojustice for more information.
[Swaraj gave a brief overview of TPP here.]
TPP deals with a lot many controversial and crucial areas. Therefore, a nation like United States, a self-proclaimed “defender” of democracy, cannot afford to maintain secrecy here. Having said that, I am not sure whether public scrutiny of ‘negotiations’ is a welcome idea. It is useful and important to maintain a certain degree of secrecy at the negotiation stage of any treaty. The act of balancing ‘institutional privacy’ and ‘institutional transparency’ is a deft art. In the Indian context, the possibility of revelations of official documents containing the interactions amongst the bureaucrats has stifled bureaucratic creativity – since a bureaucrat can no longer express his views freely. However, non-involvement of civil society in crafting crucial policy decisions cannot be ‘fathomed’. Note that TPP contains several TRIPS plus provisions which have far-reaching consequences. Therefore, lack of transparency is totally undesirable.
As Madhulika rightly pointed out here, “It is highly likely that TPP will affect other countries apart from those currently involved in negotiations. Countries that are not parties may be coerced into becoming members by imposing TPP agreement as a precondition for other bilateral trade agreements .Alternatively countries that are not members may be evaluated against TPP standards in the annual Special 301 process administered by the USTR.”
I would also like to appreciate the role played by IP Watch. It has been at the forefront on various IP issues. And like SPICY IP, it has always been a proponent of transparency. According to infojustice, IP-Watch is represented in the lawsuit by the Media Freedom and Information Access Clinic at Yale Law School. Yale law students Brianna van Kan, Ben Picozzi and Rebecca Wexler argued the case under the supervision of attorneys Jonathan Manes and David A. Schulz. This close association between academia and practice is something worth emulating. I have always been a proponent of bridging the gap between academia and practice. The recent SC judgment on 66A of IT Act witnessed a proactive academia. The SC judgment on Section 3(d) of Patents Act, 1970 was another instance. However, more needs to be done in this front. We are far below our potential in this front.