Constitutionalising political parties in India

VASANTH ADITHYA. J explains the need for a constitutional framework governing the setting up and regulation of political parties in India.

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POLITICAL parties in India are openly caste or religion-based, and many are family fiefdoms renowned for cronyism. In August 2020, 23 senior Indian National Congress leaders sent an open letter to the party's acting President, Sonia Gandhi, demanding sweeping changes within the party. Inter alia, the open letter called for a "full time and effective leadership" within the party, as well as elections to the Congress Working Committee and the urgent establishment of an "institutional leadership mechanism" to collectively guide the party's revival.

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The Constitution (Ninety-Seventh) Amendment Act, 2011 inserted, inter alia, the right to form co-operative societies as a fundamental right under Article 19(1)(c) of the Indian Constitution. While this amendment was partly struck down by a 2:1 majority judgment of the Supreme Court in July 2021, it is astonishing to note that the "right to form political parties" or any provision regulating the functioning of political parties, do not form part of the Constitution. It is, thus, imperative to constitutionalise political parties for the effective functioning of democracy in India. 

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Political parties and Constitutional externalities

Political parties are the quintessential link between the citizens and the government, and function as representatives of the people, either as members of the ruling party that forms the government or in the opposition.

In his concluding remarks before the Constituent Assembly of India, Dr. B.R. Ambedkar opined that:

"The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics."

Although the Constituent Assembly was silent on the regulation of political parties, the Constitution itself was engendered as a result of party politics, as India's freedom struggle was steered by the Indian National Congress.

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 The current day Indian political dynamics are significantly different from the conditions prevalent in the early 1950s, though. Hence, it is the need of the hour to bring political parties within the ambit of the constitutional framework. 

Perils of party politics

As political parties are representatives of citizens in the Government, there is a need for regulation to make them more accountable and transparent. There are no in-party elections except in a few parties such as the Communist Party of India (Marxist). Party funds are often from dubious sources, and the public interest litigation (PIL) to bring political parties under the ambit of the Right to Information Act, 2005 (the RTI Act), so as to be covered within the purview of a "public authority" under Section 2(h), is currently pending adjudication by the Supreme Court. 

Most importantly, expenditure incurred by the political parties during elections should also be made available to the public. Further, electoral bonds do not disclose the details of the donors, and there is no legal ceiling or limitation imposed on the expenditure to be incurred by the political parties during election.

Party Discipline and the Anti-defection Law

The Constitution (Fifty-Second) Amendment Act, 1985 recognised political parties within the purview of anti-defection, which prohibits switching parties or dissenting against the party, resulting in disqualification of membership of the Parliament. Although, the said amendment recognises political parties only within the frame work of anti-defection, the Constitution is silent on other aspects concerning the functioning of political parties.

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While Section 29A of the Representation of the People Act, 1951 lays down conditions on political parties including but not limited to registration of a party with the Election Commission, the statute does not regulate the internal functioning of a political party. Further, the Election Commission is not legally empowered to deregister a political party in India.

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Global trends post World War II

Several democratic changes have occurred globally post the Second World War, especially in the area of party constitutionalisation. In Europe, several democratic changes were brought about after the establishment of the United Nations and the initiation of the Nuremberg war trials. 

Iceland was  the first nation to recognise political parties within its constitutional framework in 1944, followed by Austria, Italy and Germany in 1945, 1947and 1949, respectively. Several other European polities have also recognised political parties within the constitutional framework, with Luxembourg being the latest, in the year 2008. The European Parliament under the European Union (EU) has also passed a resolution for member countries on assigning constitutional status to European political parties.

However, political parties are extra-legal in many countries of the world. In both the US and Britain, political parties are still constitutionally unrecognised.

Drastic reforms required in India

Primarily, the legal lacunae for regulating the functioning of political parties must be remedied by constitutionalising political parties, which would, in turn, de-communalise these parties and increase their transparency and accountability. There have been proposals in the past to establish a National Election Fund for receiving donations from the public for conducting elections, which may also bring in efficiency to the democratic process of elections.

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Effective laws that prevent criminals from contesting should be mandatory, as there are more than 2,500 sitting Members of Legislative Assemblies (MLAs) and Members of Parliament (MPs) facing criminal charges in our nation, as of 2020. Electoral reforms such as abolishing the "first past the post system" and replacement with a system wherein a minimum percentage is to be mandated for declaring the winning candidate must be considered. Increased public participation and judicial intervention are also the need of the hour.

(Vasanth Adithya. J, founder of Kreetam Law Associates, is a practicing advocate at the High Court of Karnataka, and author of 'Conceptual foundations of Competition law in India' . The views expressed are personal.)