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Ajit Pawar is sworn in as Deputy Chief Minister of Maharashtra On 2 July 2023. Prior to that, he was the Leader of the Opposition in the Maharashtra Legislative Assembly. while Power key Not seen as unexpected by many political commentators, it raises many questions about the health of our democracy.
Reforms in anti-dissident legislation are needed to address attempts to remove governments, break up parties, and co-opt leaders.
The main problem is the lack of systems in the internal performance of political parties. Resolving this can help balance opposition within the party with constitutional morality.
The Election Commission of India (ECI) basically derives its power to “supervise, direct and control elections” from Article 324 of the Constitution. Parliament conferred specific powers and duties on the IEC through (primarily) the Representation of the People Act 1950. The Act, through Article 29a, gives the European Securities Commission the power to register political parties.
Further, the Supreme Court of Indian National Congress (I) v. Institute of Social Welfare and Ors (2002) has made it clear that ECI cannot cancel the registration of a party for breach of the constitution or for breach of the undertaking given to it at the time of registration. This makes the ECI a mere spectator to the violation of the basic principles of the tools that are the source of its existence and its powers.
The Tenth Schedule to the Constitution does not allow a legislator to change party allegiances by voting against party directives on the House floor or through actions outside the House. The political party can choose to overlook the actions of the legislator in the case of the former. A defense—two-thirds or more of the legislators in that House amalgamated with any other party—is also available to “dissidents”.
The Supreme Committee has clarified some points under the Anti-Defection Act in the case of Subhash Desai v. Principal Secretary and Governor of Maharashtra (2023). The court distinguished between a political party and a legislative party. As a result, after a careful reading of the provisions of the Tenth Schedule, I concluded that only the political party could appoint the leader of the legislative group and the whip. But how can the political party involved be determined in case of disagreement?
The new way in the case of the Shiv Sena was the “dissenters” claiming to be the party and thus, there was no question of defection. The European Electoral Commission has the power to adjudicate disputes between factions of a political party, in the event of a ‘split’ under Clause 15 of the Election Codes (Reservation and Allocation) Order, 1968. In such cases – as per the High Court in Sadiq Ali v Election Commission of India (1971) – “Majority Test”, “Party Constitution Test” and “Goals and Objectives Test” can be used. In the case of the Shiv Sena, the latter two tests were rejected by the IEC, because both factions were claiming to be working to further the party’s goals and objectives, and the party’s constitution did not promote democracy within the party.
The “majority test” involves majority on two fronts – regulatory and legislative. The test of the regulatory front is supposed to depend on the decision-making power at the top. The IEC did not apply the test on the regulatory front in this case as the main decision-making authority was elected by an electoral college nominated by the president – making it undemocratic.
The case of the National Congress Party is a strange one. The party constitution available on the ECI website is a version from 2011. It does not specify the powers of office-holders or bodies, except those of the Working Committee. It was reported by several news agencies that after the split of the Shiv Sena, the constitution of the NCP was amended in order to avoid a similar situation in the party. However, this version is not available in the public domain; It is unclear if it was registered by the ECI.
According to reports, both factions—led by Ajit Pawar and Shrad Pawar—issued decrees expelling or suspending members of the other faction, claiming themselves as the party. That question is likely to come to the gates of the International Trade Commission, which will have to adjudicate another dispute in less than a year.
Imagine a situation where the head of state of a national party appoints a whip to that state’s legislature and the national executive appoints another person to the same position. Any valid whip? What happens when the party leader loses the party’s trust? What are the removal procedures? What are the procedures for suspending or expelling a member? Ideally, the answers to these questions should be found in a political party’s constitution.
Several parties have tried to make their constitution relevant and inclusive. But the most fundamental question is: Do all parties have a constitution? Of the more than 2,500 registered parties, the Election Commission website displays the constitutions of 34 parties. In the present situation there are no consequences of not having a constitution except to leave the members themselves vulnerable to the realpolitik of defection.
This conundrum can be solved by modifying the law in two ways. First, the party constitution must be mandatory; One that defines actions that go beyond the requirements present at the time of registration under Section 29A – defines the role of the political party in relation to the legislative party (appointment of the whip, etc.), removal and suspension of members, challenges to leadership, and involvement of members in matters of leadership. Second, ECI must be enabled to suspend registration or deregister a party for non-compliance with basic requirements.
This would help settle intra-factional differences, including questions of leadership – as is often seen in the UK – within a political party. Providing ways to express dissent and a possible changing of the guard would protect the political party from disintegration through subterfuge. A empowered ECI can ensure that these rules are enforced to promote internal party democracy.
Legal Committee Report No. 170 also recommended adding Part IV C to the People’s Representation Law to regulate the internal work of parties. A committee composed of former judges, bureaucrats, and lawyers drafted the Political Parties (Registration and Organization of Affairs) Bill for this project. The organization of internal party democracy is not a new idea, and it can be applied. It can be widely seen in European countries. According to research by Ingrid van Bezen and Daniela Romet Picciu, out of 21 countries, 12 require members to lead and seven provide the right to dissent and have an internal arbitration panel. The organization of internal party democracy is not a new idea, and it can be applied.
Although the IEC is empowered to adjudicate disputes within party factions, it is a lengthy quasi-judicial process that relies on an institution outside the political party to enter the realm of what is essentially a matter of leadership. This is because most political parties operate as individual or family institutions; There is no perception of parties as institutions. Hence, the reluctance to introduce strong forms of internal democracy within the parties.
As people innovate new forms of subverting the constitutional order and innovative ways to avoid dissidence, there is a need to seriously reconsider the way parties are organized. Requiring internal party democracy would be a serious first step on this path.
The writer is a political researcher, I-PAC
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